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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2016

## Text

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SoS No. 15-680 oe
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
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0637%3A19. Public record. Not legal advice.