Amicus Curiae Brief — Bethune-Hill v. Va. State Bd. of Elections, 136 S. Ct. 2406 (2016) (No. 15-680)

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TORT ee SEP 14 2016

Supreme Court of the United States ““°"—

GOLDEN BETHUNE-HILL, e? al.,

Appellants,

v.

VIRGINIA STATE BOARD OF ELECTIONS, et al.,

Appellees.

On APPEAL FROM THE UNITED States Disrricr

Court FOR THE EASTERN DistRIcT OF VIRGINIA

BRIEF OF THE LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS UNDER LAW

AS AMICUS CURIAE IN SUPPORT OF

NEITHER PARTY

KRiSTEN CLARKE MICHAEL B, pe Leguw

Jon M. GREENBAUM Counsel of Record

Ezra D. ROSENBERG MATTHEW L. ELKIN

Juiz M. Houx ALEXANDER SELARNICK

LAWYERS’ COMMITTEE FOR CozEN O’CONNOR

Crvi Ricuts UNDER Law 45 Broadway, Suite 1600

1401 New York Avenue, NW New York, NY 10006

Suite 400 (212) 908-1331

Washington, DC 20005 mdeleeuw@cozen.com

(202) 662-8600

Counsel for Amicus Curiae

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COUNSEL PRESS °

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TABLE OF CONTENTS

Page

Oe CEE oc co bcc dcsiccictecctececs i

TABLE OF CITED AUTHORITIES .............. ili

STATEMENT OF INTEREST .................... l

SUMMARY OF ARGUMENT...................-.. 2

San cakenecckicatadaschieesencn ten en 5

I. THIS COURT HAS SET FORTH A

CLEAR AND WORKABLE STANDARD

FOR DETERMINING WHETHER

AN ELECTION DISTRICT IS A

RACIAL CLASSIFICATION SUBJECT

EE EEO, Gksces cas cencascess 5

A. Courts Must Apply the Analysis

Set Forth in Miller to Determine

Whether a Challenged Election

District is a Racial Classification

Subject to Strict Scrutiny ............... 5

B. The Use of a Targeted Racial

Percentage Does Not, In and of Itself,

Trigger Strict Scrutiny ..............-: 7

C. Itis Unclear Whetherthe District Court’s

“Actual Conflict” Legal Standard is

Consistent with the Well-Established

Miller/Alabama Framework............ 13

a

Table of Contents

II. COMPLIANCE WITH THE VOTING

RIGHTS ACT IS ACOMPELLING STATE

SPREE 554 Gccvebeenses sac cvatVeaune os

Ill. THE DISTRICT COURT’S STRICT

SCRUTINY ANALYSIS NEEDS

CEE 66.60 F686 5 0c cvetnen vinta

IEE no kok cue kc SS eupenveuen stueeunenate

102

TABLE OF CITED AUTHORITIES

Page

Federal Cases

Abrams v. Johnson,

go oes crake 9

Alabama Legislative Black Caucus v. Alabama,

ee a, Eo cckoss Wecduteneewe passim

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

ee Os pet eleweeebeuaeu aus 1

Bartlett v. Strickland,

te ete eekae ae eeak es 1

Bush v. Vera,

Sa Es occ abetebandecehacuas passim

City of Mobile v. Bolden,

de arekaebakesbe 1

Clark v. Roemer,

ho, se wine b Oe bere web 1

Clinton v. Smith,

eS oc enc ke atc veseehss teeb ens 1

Connor v. Finch,

ee EE: os sive bonney ckdvanees eee 1

Covington v. N. Carolina,

No. 1:15-CV-399, 2016 WL 4257351

ee ee ee ere 18

wv

Cited Authorities

Page

Easley v. Cromartie,

I oad vey ke é< pace eundeeseces 7,9

Gomillion v. Lightfoot,

et ee Ls 0 oS kad wdnedbeesn ede ee. 10

Harris v. Arizona Indep. Redistricting Comm'n,

Gd Nic isks cueeekebawes uses 18

Harris v. Arizona Indep. Redistricting Comm’n,

993 F. Supp. 2d 1042 (D.Ariz. 2014) ............ 20

King v. Illinois State Bd. of Elections,

ee Re I cock cdeceS en evsce seasons i)

King v. Illinois State Bd. of Elections,

979 F. Supp. 619 (N.D. Ill. 1997). ............ 22, 23

League of United Latin Am. Citizens v.

Perry (““LULAC”),

ee nat wn a bee Bee 16, 17, 23

Miller v. Johnson,

Ns 6 6 ek 6s wh re Redes passim

Northwest Austin Municipal Utility District No. 1

v. Holder,

Sr ee pie code nbs cued ous cinewe swans ]

Page v. Virginia State Bd. of Elections,

No. 3:13CV678, 2015 WL 3604029

Ee SU So Cage oe bob deeds ueden bess 13-14, 15

Vv

Cited Authorities

Reno v. Bossier Parish Sch. Bd.,

Ge hi PEON oie eves ew eduiewss

Ricci v. DeStefano,

567 U.S. 557, 585 (2009)..............

Shaw v. Hunt,

pe | Pee eee

Shaw v. Reno,

Se Rid GRD 66 60s Sess ove dae’

Shelby County v. Holder,

ee TT eee eee

South Carolina v. Katzenbach,

eer Tee TT

Thornburg v. Gingles,

Go SP Ch onc nes Kien eccess

United States v. Hays,

Pe AAs FOE CUES 5 oc ress ccccaneees

Vill. of Arlington Heights v.

Metro. Hous. Dev. Corp.,

Peer errr eee

Voinovich v. Quilter,

Pe BAe SORES bres cece ses enters

vt

Cited Authorities

Page

Washington v. Davis,

Sn ae be 12

Yick Wo v. Hopkins,

ng cheba cvanwakeewsiwenter 19

Young v. Fordice,

I Sd, epee die ebceeeas 1

Statutes

ee IIIS © asc iu db ico-een Goo eb dks O0sececeuki 17

ey CaS I onc evcledacbowscentaudia 18

PIE ons cused nanesaasincvecs passim

Constitutional Provisions

Roa Ss PRM AY vos ve cccccvesccosess passim

Se I Es cnt. occu ceenees ecu 16, 17

]

STATEMENT OF INTEREST’

The Lawyers’ Committee for Civil Rights Under

Law 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 8. 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); Reno 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

curvae 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 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.

1. Petitioners’ and Respondents’ written letters of consent to

amicus briefs have been lodged with the Clerk. Pursuant to Rule

37.6, counsel for amici authored this brief in whole, no counsel for

a party authored this brief in whole or in part, and no person or

entity—other than amici, their members, and their counsel—

contributed monetarily to the preparation or submission of this

brief.

2

SUMMARY OF ARGUMENT

In the wake of Shaw v. Reno, 509 U.S. 630 (1993),

this Court laid out a clear and workable standard for

determining whether an election district is a racial

classification subject to strict scrutiny. See Miller v.

Johnson, 515 U.S. 500 (1996). Under the Miller framework,

the vitality of which was recently reaffirmed in Alabama

Legislative Black Caucus v. Alabama, 135 8S. Ct. 1257

(2015), a plaintiff has the burden to show that race was

the predominant factor motivating a legislature’s decision

to place a significant number of voters within or without

a particular district. Miller, 515 U.S. at 916. To make this

showing—and to trigger strict scrutiny—the plaintiff

must prove that the legislature swbordinated traditional

race-neutral districting principles to racial considerations.

Id.

The Miller/Alabama framework takes into account

the challenging realties of drawing election districts,

including that states often must consider race in drawing

majority-minority districts. Thus, this Court has never

subjected a redistricting plan to strict scrutiny solely

based on a state’s decision to achieve a particular racial

percentage within a particular district, and amicus

urges this Court not to do so in this case. Rather, the

Court should reaffirm that the primary consideration is

whether, on a district-by-district basis, “the legislature

subordinated traditional race-neutral districting

principles .. . to racial considerations.” Miller, 515 U.S.

at 916. Only in those districts where race predominated

should strict scrutiny apply.

3

Indeed, it is the implementation of the state’s target

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

that ultimately determines whether particular districts

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 challenged 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 dramatically irregular in its overall shape.

Further, the District Court in this case concluded

that a finding of predominance under Miller “demands

actual conflict between traditional redistricting criteria

and race that leads to the subordination of the former,

rather than a merely hypothetical conflict that per force

results in the conclusion that the traditional criteria have

been subordinated to race.” J.S. App. at 1-2 (internal

quotations omitted).* This Court has never articulated the

Miller/Alabama standard in these precise terms, and the

record below makes it difficult to discern exactly how the

District Court applied the “actual conflict” standard. Ifthe

District Court’s adoption of the “actual conflict” standard

is consistent with this Court’s Miller/Alabama framework,

then the application of this standard is perhaps just another

way of analyzing whether the legislature, in a particular

instance, subordinated traditional race-neutral districting

principles to racial considerations. Nevertheless, because

it is unclear from the District Court’s opinion how the

2. “J.S. App.” refers to the Appendix attached to the

Appellants’ Jurisdictional Statement.

4

“actual conflict” predominance standard was applied,

and whether its application is consistent with Miller/

Alabama, guidance from this Court would be helpful to

district courts around the nation. In this regard, amicus

was unable to determine from the record below whether

Appellants submitted evidence regarding subordination

that the District Court did not review or fairly assess.

In its analysis of House District No. 75 (the only

district where the District Court found that race had

predominated over traditional districting principles),

the District Court correctly held that compliance with

the VRA can be a compelling state interest. A majority

of the members of the current Court have supported this

view, and this holding by the District Court should not

be disturbed.

While the District Court correctly determined that

compliance with the VRA can be a compelling state

interest, its description of how it applied strict scrutiny

is confusing, particularly with regard to its treatment of

“narrow tailoring.” The District Court appears in places

to conflate the predominance inquiry for triggering strict

scrutiny with the narrow tailoring inquiry for a district

already subject to strict scrutiny. The District Court also

held that a state must prove that “its own departure from

non-racial criteria was not substantial.” This requirement

is not supported by this Court’s jurisprudence and could—

depending on how one interprets the requirement—lead

to incorrect results. Rather, it has always been the

law that election districts may reasonably depart from

traditional redistricting principles, such as compactness

or governmental boundaries, to comply with the VRA.

In other words, a district may depart from traditional

5

redistricting principles where reasonably necessary.

Under the District Court’s reasoning, VRA compliance

will always be a prisoner to the “non-substantial”

requirement, which may render an otherwise reasonably

necessary departure unconstitutional. Respectfully, this

Court should take the opportunity to amplify its holding in

Alabama with regard to the application of strict scrutiny.

ARGUMENT

i. THIS COURT HAS SET FORTH A CLEAR AND

WORKABLE STANDARD FOR DETERMINING

WHETHER AN ELECTION DISTRICT IS A

RACIAL CLASSIFICATION SUBJECT TO

STRICT SCRUTINY

A. Courts Must Apply the Analysis Set Forth in

Miller to Determine Whether a Challenged

Election District is a Racial Classification

Subject to Strict Scrutiny

The Equal Protection Clause prohibits states from

classifying citizens by race, including adopting electoral

redistricting schemes based on racial characteristics

without adequate justification. See Shaw, 509 U.S. at

645. To demonstrate that a district violates 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 916. If a plaintiff makes this

showing, the Court then employs its “strictest scrutiny”

to determine whether the redistricting plan was narrowly

tailored to further a compelling state interest. /d.

6

In Miller, the Court set forth the analytic framework

for determining when a state electoral districting plan

triggers strict scrutiny under the Equal Protection

Clause:

The courts, in assessing the sufficiency of

a challenge to a districting plan, must be

sensitive to the complex interplay of forces

that enter a legislature’s redistricting calculus.

Redistricting legislatures will, for example,

almost always be aware of racial demographics;

but it does not follow that race predominates in

the redistricting process. . . . The distinction

between being aware of racial considerations

and being motivated by them may be difficult to

make. This evidentiary difficulty, together with

the sensitive nature of redistricting and the

presumption of good faith that must be accorded

legislative enactments, requires courts to

exercise extraordinary caution in adjudicating

claims that a state has drawn district lines on

the basis of race. The plaintiff’s burden is to

show, either through circumstantial evidence

of a district’s shape and demographics or more

direct evidence going to legislative purpose,

that race was the predominant factor motivating

the legislature’s decision to place a significant

number of voters within or without a particular

district. To make this showing, a plaintiff

must prove that the legislature subordinated

traditional race-neutral districting principles,

including but not limited to compactness,

contiguity, and respect for political subdivisions

or communities defined by actual shared

7

interests, to racial considerations. Where

these or other race-neutral considerations are

the basis for redistricting legislation, and are

not subordinated to race, a state can “defeat a

claim that a district has been gerrymandered

on racial lines.

Miller, 515 U.S. at 915-16 (quoting Shaw, 509 U.S. at 646-

47 (internal citations omitted)); see also Alabama, 135 S.

Ct. at 1264; Easley v. Cromartie, 532 U.S. 234, 1458 (2001).

The Miller framework, which the Court applied last

year in Alabama, requires the district court to review each

potentially problematic district separately. See Alabama,

135 S. Ct. at 1265. This district-by-district review

requires an analysis of, among other things, the shape,

compactness and contiguity of the district, respect for

traditional political subdivisions, demographics and other

factors. See Shaw, 509 U.S. at 646; Miller, 515 U.S. at 916.

The Court in Miller set forth a clear and workable rule:

a plaintiff must prove that the legislature subordinated

traditional race-neutral districting principles, including

but not limited to compactness, contiguity, and respect

for political subdivisions or communities defined by actual

shared interests, to racial considerations. /d.

B. The Use of a Targeted Racial Percentage Does

Not, In and of Itself, Trigger Strict Scrutiny

Appellants present the following question for this

Court’s review:

2. Did the court below err by concluding that

the admitted use of a one-size-fits-all 55% black

8

voting age population floor to draw twelve

separate House of Delegates districts does not

amount to racial predominance and trigger

strict scrutiny?

The answer to that question should be “no.” Strict

scrutiny review is triggered only where a district court

determines that race predominated over the other

traditional districting factors in drawing the particular

district and, in doing so, subordinated all of those other

traditional, race-neutral factors. Miller, 515 U.S. at 916.

In determining whether racial considerations

predominated, the analysis begins with an objective

spatial analysis of the district and its minority population.

It focuses on 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

requires consideration of the compactness and dispersal

of the minority population within a district, for example

whether the minority population is connected by artifices

such as land bridges or relies on point contiguity that

would not normally be employed. 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 v.

Vera, 517 U.S. 952, 974 (1996).

Applying these standards, this Court has never

applied strict scrutiny solely upon a state’s decision to

achieve a particular racial percentage within a particular

district. See Alabama, 135 S. Ct. at 1272 (citing Vera, 517

9

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. /d. at

645 (12th Congressional District in North Carolina); Shaw

v. Hunt, 517 U.S. 899 (1996) (same); Cromartie, 532 U.S.

234 (same); United States v. Hays, 515 U.S. 737, 741-742

(1995) (2nd and 4th Congressional Districts in Louisiana);

Miller, 515 U.S. 900 (llth Congressional District in

Georgia); Abrams v. Johnson, 521 U.S. 74, 77-78 (1997)

(2nd and 11th Congressional Districts in Georgia); Vera,

517 U.S. 952 (18th, 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 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 racially disparate way. See Vera, 517 U.S at 974; Miller,

515 U.S. at 917; Shaw, 509 U.S. at 630.

These objective factors assume primary importance,

because “reapportionment is one area in which appearances

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

objective inquiry is enough to demonstrate that a state

10

engaged in an unlawful racial gerrymander. /d. 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 an undue role in districting decisions. See

Miller, 515 U.S. at 917-18.

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 concentrates

members of the group in one district and excludes them

from others may reflect wholly legitimate purposes.”).

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 contrivances 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

1]

might have to violate traditional districting principles in

order to prevent the creation of a 75 percent minority

district. Needless 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 manipulations 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 constitutional 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 understanding of equal protection because it

would create explicitly 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 districts

has a predictable and substantial electoral 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.”); see also Shaw, 509 U.S. at 646

(“[T ]he legislature always is aware of race when it draws

district lines ....That sort of race consciousness does not

lead inevitably to impermissible race discrimination.”).

It is unrealistic to expect that prohibiting states from

acknowledging racial compositions in their redistricting

decisions will prevent states from ever being aware of

12

the racial impact of these decisions, and may, in fact,

encourage subterfuge and opacity in the redistricting

process.

The structure of the Miller/Alabama test is faithful

to this Court’s general framework for discerning 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). 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

important 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 “legislative 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 motivated by unjustified racial

considerations begin with an objective analysis before

probing the legislative record for indicia of improper

purpose.

By relying on Miller’s objective factors, courts can

better distinguish those cases where piercing the veil

of the legislative process is appropriate. If an objective

analysis of a challenged district’s geography provides

a strong basis to infer racial gerrymandering, then

discovery int. the state’s legislative process would be

warranted notwithstanding assertions of legislative

privilege.

13

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.

C. It is Unclear Whether the District Court’s

“Actual Conflict” Legal Standard is Consistent

with the Well-Established Miller/Alabama

Framework

The District Court held that it was:

the burden of the Plaintiffs to prove by a

preponderance of the evidence that race was

the predominate factor motivating the decision

to place a significant number of voters within

or without a particular district in that, as to

each of those districts, Virginia’s General

Assembly subordinated race-neutral districting

principles to racial considerations when forming

the district.

J.S. App. at 1-2. The District Court further concluded

that such a finding “demands ‘actual conflict between

traditional redistricting criteria and race that leads to

the subordination of the former, rather than a merely

hypothetical conflict that per force results in the conclusion

that the traditional criteria have been subordinated to

race.” Id. at 5 (quoting Page v. Virginia State Bd. of

14

Elections, No. 3:13C V678, 2015 W L 3604029, at *27 (E.D.

Va. 2015) (Payne, J., dissenting)) (emphasis in original).

Applying this legal standard, the District Court held that

“plaintiffs have not carried that burden and that race was

not shown to have been the predominant factor in the

creation of eleven of the twelve Challenged Districts.”

J.S. App. at 2.

It is unclear from the record whether the District

Court’s use of the “actual conflict” standard differs in

any material way from the Miller/Alabama framework.

Certainly, the Miller/Alabama predominance inquiry

has never explicitly required that the use of race in

drawing district boundaries be in “actual conflict” with

traditional districting criteria. But this is not to say

that such an “actual conflict” standard is erroneous as a

matter of law. Rather, if the District Court’s adoption and

application of the “actual conflict” standard is consistent

with this Court’s Miller/Alabama framework, then the

application of this standard is perhaps just another way

of analyzing whether the legislature, with regard to a

particular district, subordinated traditional race-neutral

districting principles to racial considerations. See Miller,

515 U.S. at 916.

Under the Miller/Alabama framework, plaintiffs

in racial gerrymandering cases must prove that racial

considerations predominated over traditional race-neutral

districting criteria. To make this showing, plaintiffs

must provide actual proof, typically in the form of expert

testimony, that traditional principles were subordinated

to race in the drawing of a particular district. See, e.g.,

Alabama, 135 S. Ct. at 1265-68; Miller, 515 U.S. at 916;

Vera, 517 U.S. at 965; Shaw, 509 U.S. at 649. Absent

such actual proof, strict scrutiny will not be triggered.

Accordingly, the line courts draw in racial gerrymandering

15

cases already requires that plaintiffs show that racial

considerations are in conflict with traditional race-neutral

districting principles.

Still, in formulating the “actual conflict” standard,

the District Court provided minima] analysis as to how it

was applied; and, in support of its use, the court cited only

Judge Payne’s dissent in Page, 2015 WL 3604029, at *27

(Payne, J., dissenting). Thus, it is unclear from the record

how the “actual conflict” standard was applied, whether

the use of the standard affected the District Court’s

conclusions, whether the standard is helpful in any way,

and whether the standard is consistent with the Miller/

Alabama predominance inquiry. Accordingly, this Court

should take the opportunity to clarify how the Miller/

Alabama framework should be applied in cases like this.*

Il. COMPLIANCE WITH THE VOTING RIGHTS ACT

IS A COMPELLING STATE INTEREST

The Voting Rights Act of 1965 was enacted to “address

entrenched racial discrimination in voting, ‘an insidious

and pervasive evil which had been perpetuated in certain

parts of our country through unremitting and ingenious

defiance of the Constitution.” Shelby County, 133 S. Ct.

at 2618 (quoting South Carolina v. Katzenbach, 383 U.S.

301, 309 (1966) (internal quotations omitted). The VRA

prohibits states from adopting plans that would result in

vote dilution under Section 2 or (prior to Shelby County)

in covered jurisdictions, retrogression under Section 5.

3. Again, in this regard, amicus has been unable to

determine from the record whether Appellants submitted evidence

as to subordination that the District Court did not review or fairly

assess.

16

Members of this Court, including the majority of the

current Court, have long assumed that compliance with

the VRA is a compelling state interest. See, e.g., Vera, 517

U.S. at 977 (O’Connor, J., for the plurality, joined by Chief

Justice Rehnquist and Justice Kennedy) (“[W Je assume

without deciding that compliance with the results test

lof Section 2 of the VRA]. .. can be a compelling state

interest.”); 2d. at 992 (O’Connor, J., concurring) (“In my

view ... the States have a compelling interest in complying

with the results test [of the VRA] as this Court has

interpreted it.”); zd. at 1033 (Stevens, J., dissenting, joined

by Justices Ginsburg and Breyer) (“The plurality begins

with the perfectly obvious assumption[] that a State has

a compelling interest in complying with § 2 of the Voting

Right Act.”); Shaw v. Hunt, 517 U.S. 899 (Rehnquist, C..J.)

(assuming but not deciding that VRA compliance can be a

compelling interest); League of United Latin Am. Citizens

v. Perry (““LULAC”), 548 U.S. 399, 518 (2006) (Scalia,

J., concurring in the judgment in part and dissenting in

part, joined by Chief Justice Roberts, Justice Thomas and

Justice Alito) (“I would hold that compliance with § 5 of the

Voting Rights Act can be [a compelling state] interest.”).

The majority and dissent below also agreed that

compliance with the VRA is a compelling state interest.

See J.S. App. at 76-77 (majority); id. at 144 (dissent). Judge

Payne, for the majority, adopted Justice Scalia’s rationale

in LULAC, holding generally that Section 5 is a compelling

state interest:

We long ago upheld the constitutionality of

§ 5 as a proper exercise of Congress’s authority

under § 2 of the Fifteenth Amendment to

enforce that Amendment’s prohibition on the

17

denial or abridgment of the right to vote. If

compliance with § 5 were not a compelling state

interest, then a State could be placed in the

impossible position of having to choose between

compliance with § 5 and compliance with the

Equal Protection Clause.

J.S. App. at 76 (quoting LULAC, 548 U.S. at 518 (internal

citations omitted)). Judge Payne also found the same

rationale persuasive with regard to Section 2. Jd. at

77, n. 23 (citing Vera, 517 U.S. at 990-92 (O’Connor, J.,

concurring)).

Section 2 of the VRA prohibits (among other things)

redistricting that results in dilution of minority voting

strength, whether or not the legislature intended such a

result. See 52 U.S.C. § 10301; see also Shaw, 509 U.S. at 641;

Gingles, 478 U.S. 30 (applying Section 2 to vote-dilution

claim involving multimember districts); Voinovich v.

Quilter, 507 U.S. 146, 155 (1993) (single-member districts).

This Court has made clear that Section 2 is “necessary and

appropriate to ensure full protection of the Fourteenth

and Fifteenth Amendments rights.” Vera, 517 U.S. at 992

(O’Connor, J. concurring) (internal citations omitted). The

“results” test of Section 2 is necessary because, without

it, “nothing could be done about overwhelming evidence of

unequal access to the electoral system” or about “voting

practices and procedures that perpetuate the effects of

past purposeful discrimination.” Jd.

With respect to Virginia’s post-2010 census

redistricting, and for all redistricting that occurred

before this Court decided Shelby County, Section 5 of

the VRA is also a compelling state interest. Section

18

5 “prohibits a covered jurisdiction from adopting any

change that ‘has the purpose of or will have the effect

of diminishing the ability of the minority group to elect

their preferred candidates of choice.” Alabama, 135 S.

Ct. at 1272 (alteration in original) (quoting 52 U.S.C.

§ 10304(b)). Although the Court in Shelby County left

Section 5 functionally inoperative on a going-forward

basis, Shelby County has not, and should not, be found

to apply retroactively. As the Court noted in Harris v.

Arizona Indep. Redistricting Comm'n:

Appellants point to [Shelby County], in which

this Court held unconstitutional sections of

the Voting Rights Act that are relevant to this

case. Appellants contend that, as a result of

that holding, Arizona’s attempt to comply with

the Act could not have been a legitimate state

interest. The Court decided Shelby County,

however, in 2013. Arizona created the plan at

issue here in 2010. At the time, Arizona was

subject to the Voting Rights Act, and we have

never suggested the contrary.

136 S. Ct. 1301, 1310 (2016); see also Alabama, 135 S. Ct.

at 1274 (declining to decide whether “continued compliance

with § 5 remains a compelling interest” following Shelby

County). Moreover, the Court in Shelby County, in finding

Section 4(b) of the VRA unconstitutional, clarified that is

“issue[d] no holding on § 5 itself, only the formula.” 133

S. Ct. at 2631.

4. The District Court and other district courts have also held

that Shelby County does not apply retroactively. See J.S. App. at

11, n. 4; see also, e.g., Covington v. N. Carolina, No. 1:15-CV-399,

2016 WL 4257351, at *2 (M.D.N.C. Aug. 11, 2016).

19

This Court has long recognized that the right to vote

is sacrosanct and “preservative of all rights.” Yick Wo v.

Hopkins, 118 U.S. 356, 370 (1886). When Congress enacted

the VRA, it acted to confront discrimination relating to

that sacred and fundamental right. The VRA, therefore,

stands as among the most important acts in the history of

our nation. A state’s compliance with the VRA almost by

definition should be considered a compelling government

interest.

It. THE DISTRICT COURT’S STRICT SCRUTINY

ANALYSIS NEEDS CLARIFICATION

While the District Court correctly found that

compliance with the VRA can be a compelling state

interest with regard to House District No. 75, its

description of how it applied strict scrutiny is confusing,

particularly with regard to its treatment of “narrow

tailoring.” Respectfully, this Court should take the

opportunity to amplify its holding in Alabama with regard

to the application of strict scrutiny.

The District Court, in holding that compliance with

Section 5 could be a compelling state interest, tacked on

the “proviso that the State’s interest must be in actual

compliance with the standards articulated in federal

antidiscrimination law as interpreted by the federal

courts.” J.S. App. at 77 (emphasis in original). The District

Court’s “proviso” draws a distinction between “actual

compliance” with the VRA as a compelling state interest,

and, what it terms “defensive compliance,” which is not.

“Defensive compliance” is a state’s “interest in avoiding

preclearance denial under Section 5 (or liability under

Section 2).” Jd. Such “defensive compliance could often

20

entail a violation of constitutional law itself subordinating

traditional, neutral criteria and other districting criteria

to racial considerations.” Jd. at 77-78 (citing Harris v.

Arizona Indep. Redistricting Comm’n, 993 F.Supp.2d

1042, 1054-55 (D.Ariz. 2014) (noting that “[s]everal aspects

of the preclearance process . . . may work together to

... encourage a state that wants to obtain preclearance

to overshoot the mark, particularly if it wants its first

submission to be approved”).

In order to effectuate this distinction, the District

Court requires that:

[F Jor predominance, the inquiry is whether,

as a matter of fact, the State substantially

disregarded non-racial criteria. For narrow

tailoring, the inquiry is whether the State had

good reason to believe that its actions were

required for actual compliance with the non-

dilution or non-retrogression standard. Because

substantial disregard of non-racial criteria is

not required under a constitutional reading

of either standard, this inquiry necessarily

entails also asking whether the State had good

reason to believe that its own departure from

non-racial criteria was not substantial.

Id. at 81 (emphasis in original). These requirements appear

to conflate the predominance inquiry with the separate

strict scrutiny inquiry. The District Court’s “proviso” is

not supported by this Court’s cases and could—depending

on how one interprets the “proviso”—lead to incorrect

results.

21

There are circumstances, for example, where a

majority-minority district may require a “substantial,”

but reasonably necessary, departure from traditional

districting principals. But under a literal reading of the

District Court’s “proviso,” such otherwise constitutional

districts could not survive strict scrutiny.

Moreover, this Court’s recent discussion of strict

scrutiny in Alabama addresses the District Court’s

concern where a state subordinates traditional districting

principals to achieve “defensive compliance” with the VRA.

A “court’s analysis of the narrow tailoring requirement

insists only that the legislature have a ‘strong basis in

evidence’ in support of the (race-based) choice that it

has made.” Alabama, 135 S. Ct. at 1274 (citing Ricci v.

DeStefano, 557 U.S. 557, 585 (2009)). “This standard does

not demand that a state’s actions actually be necessary

to achieve a compelling state interest in order to be

constitutionally valid. And legislators may have a strong

basis in evidence to use racial classifications in order to

comply with a statute when they have good reasons to

believe such use is required, even if a court does not find

that the actions were necessary for statutory compliance.”

/d. (internal citations and quotations omitted).

The case law does not require the state to prove

that “its own departure from non-racial criteria was not

substantial.” J.S. App. at 81. If race predominates over

non-racial criteria, then in some sense the departure is

always “substantial.” It also has never been the law that

VRA remedies cannot make reasonable departures from

compactness or governmental boundaries. See Vera,

517 U.S. at 979 (“[A] district drawn in order to satisfy

[the VRA] must not subordinate traditional districting

22

principles to race substantially more than is ‘reasonably

necessary’ to avoid [VRA| liability.”) (emphasis added);

Shaw, 509 U.S. at 655 (“A reapportionment plan [is] not

... narrowly tailored to the goal of avoiding retrogression

if the State went beyond what was reasonably necessary to

avoid retrogression.”) A “substantial” departure from non-

racial criteria may be “reasonably necessary” to ensure

compliance with Section 2 or Section 5in certain cases. But

under the District Court’s reasoning, VRA compliance will

always be a prisoner to the “non-substantial” requirement.

King v. Illinois State Bd. of Elections helps illustrate

the problem with the District Court’s approach. 979 F.

Supp. 619 (N.D. Ill. 1997), aff'd, 522 U.S. 1087. In King,

the district court—applying the Miller predominance

analysis—held that a majority-Latino district in Chicago

was subject to strict scrutiny because the district’s

convoluted boundaries were chosen predominantly to

unite Latino populations. The three-judge court then

found that this arrangement was a narrowly tailored

response to a very specific geographical dilemma, namely

that the African American population in Cook County

was sufficiently numerous to maintain three reasonably

compact majority-black congressional districts, and that

the Latino population was sufficiently numerous to draw

a reasonably compact majority-Latino congressional

district, but that at least one district had to be non-compact

for all four to coexist. Finding that Section 2 provided a

compelling reason to draw three majority-black districts

and one majority Latino district, the district court found

that, because the challenged district was non-compact only

to the extent needed to perform an “end-run” that linked

together geographically-proximate Latino neighborhoods

(between which an existing majority-black congressional

district lay), it was therefore narrowly-tailored and

constitutional. /d. at 623-626.

23

The majority-Latino district in King was a “substantial”

departure from traditional districting criteria, but under

these circumstances it was a narrowly tailored solution to

ensure Section 2 compliance. This constitutional district

would not survive the District Court’s standard.

The “fundamental concerns of federalism mandate

that States be given some leeway so that they are not

trapped between the competing hazards of liability.”

Vera, 517 U.S. at 992 (O’Connor, J., concurring) (finding

that Section 2 is a compelling state interest); see also

LULAC, 548 U.S. at 518 (Sealia, J., concurring in the

judgment in part and dissenting in part, joined by Chief

Justice Roberts, Justice Thomas and Justice Alito)

(“[iJf compliance with [Section 5 of the VRA] were not a

compelling state interest, then a State could be placed

in the impossible position of having to choose,” between

compliance with the VRA and compliance with Shaw and

its progeny.).

To be clear, “VRA compliance” does not give a

legislature a license to disregard traditional districting

standards. Far from it. Indeed, if a case involves the

question of VRA compliance, it is already a case where

strict scrutiny has been invoked. And, of course, a

“reapportionment plan [is] not . . . narrowly tailored to

the goal of avoiding retrogression [under Section 5] if

the State went beyond what was reasonably necessary

to avoid retrogression.” Shaw, 509 U.S. at 655. In other

words, Section 5 does not “give covered jurisdictions carte

blanche to engage in racial gerrymandering in the name of

non-retrogression.” Jd. But, in some cases, a “substantial”

departure from traditional districting criteria may be

“reasonably necessary” for a state to comply with the

VRA. Shaw and its progeny do not prevent, and, in fact,

may actually require this result.

24

CONCLUSION

For the foregoing reasons, it is respectfully requested

that this Court reaffirm the principles it has set forth in

prior cases, including, that: (1) a district is constitutional

absent a showing that traditional districting principles

were subordinated to race; (2) evidence of a target racial

percentage, while relevant, is not sufficient to establish

that traditional districting principles were subordinated

to race; (3) where strict scrutiny applies, the Voting Rights

Act can serve as a compelling state interest; and (4) a

district is narrowly tailored if it does not subordinate

traditional districting principles to race su*stantially

more than is ‘reasonably necessary’ and there is a strong

basis in evidence that to do otherwise would have violated

the Voting Rights Act.

Respectfully submitted,

KRISTEN CLARKE MICHAEL B. DE LEEUW

JON M. GREENBAUM Counsel of Record

Ezra D. ROSENBERG MATTHEW L. ELKIN

JuLie M. Houx ALEXANDER SELARNICK

LAWYERS’ COMMITTEE FOR CozEN O’CONNOR

Crvit Ricuts UNDER LAw 45 Broadway, Suite 1600

1401 New York Avenue, NW New York, NY 10006

Suite 400 (212) 908-1331

Washington, DC 20005 mdeleeuw@cozen.com

(202) 662-8600

Counsel for Amicus Curiae

September 14, 2016