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

a No. 15-680 oro

a a

—«é In The

Supreme Court of the Anited States

GOLDEN BETHUNE-HILL, ET AL.,

Appellants,

7.

VIRGINIA STATE BOARD

OF ELECTIONS, ET AL.,

Appellees.

On Appeal from the

United States District Court

for the Eastern District of Virginia

BRIEF FOR AMICI CURIAE

NATIONAL BLACK CHAMBER OF COMMERCE

AND THE HISPANIC LEADERSHIP FUND

IN SUPPORT OF APPELLEES

Jason Torchinsky

Counsel of Record

Shawn Toomey Sheehy

Steven P. Saxe

Holtzman Vogel

Josefiak Torchinsky PLLC

45 North Hill Drive

Suite 100

Warrenton, VA 20186

(540) 341-8808

(540) 341-8809

Jtorchinsky@hvjt.law

Counsel for Amici Curiae ~ bh Kat

TABLE OF CONTENTS

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STATEMENT OF INTEREST OF AMICI

SI nicdancdastahineteusstbessecxstovekessestorsuvepnseainenoveins 1

SUMMARY OF THE ARGUMENT .........................04. 2

ks Sadi alae es Lowa donosabnna jdiniktaas evsuinabectsisivi 5

I. STATE LEGISLATURES HAVE

DISCRETION IN CRAFTING

DISTRICTS THAT ARE NARROWLY

TAILORED TO SATISFY THE VOTING

IR saiddecisendapincisteiivassinsd sotiesscoeniesicwses dens 5

A. Neither §§ 2 nor 5 Of The VRA

Divests State Legislatures Of Their

Constitutional Discretion In

CHMIUMEG EIRDOREOES, «oo... ss cccccsccesscccccasssscvees 6

B. Appellants’ Theory Conflicts With

The VRA’s Preference For

Supermajority Districts....................0.....6... 9

i. The Evidence Before The

Virginia General Assembly

Requires The House To

Maintain The 12 Majority-

Minority Districts; To Do

Otherwise Risked

Retrogression. .......... sibinieedaGa nasa poadetead 9

IT.

li

ii. When Courts Become Involved

In §2 Cases, Courts Regularly

Impose Supermajority

Remedial Districts. .......................... 13

C. In Redistricting Cases, Courts Are

Reluctant To Adopt Doctrines

Imposing Mathematical Precision. .......... 14

D. The Virginia General Assembly

Exercised Its Discretion In

Adopting Twelve Majority-Minority

Districts In Consultation With And

The Approval Of The House Black

HISPANICS ARE THE FASTEST

GROWING DEMOGRAPHIC GROUP

AND THIS WILL LIMIT THEIR

REPRESENTATIVE GROWTH...............0....... 22

i. Hispanics Are The Fastest

Growing Population Group

In The United States. .................... 23

li. Hispanic Majority Districts

Are Necessary For Hispanics

To Elect Their Preferred

Candidates Of Choice. ................... 24

ili

iii. If Hispanics Are Forced To

Sue For Majority-Minority

Districts Under §2, They Will

Likely Not Prevail Because

Of The Three Gingles

Preconditions. .................c.0.000..

ti cin csien cetdunpsesinhedmsndedeeneases enon

Appendix:

Excerpt (Pages 38-39; 43) from Virginia

Redistricting: Report on Factual and

Statistical Issues Raised in "Bill of Complaint"

filed by Douglas West, et al. With Comments

on Expert Reports by Drs. David Lublin and

Alan Lichtman by James W. Loewen ...................

Table: Hispanic Members Of Congress And

Hispanic Population Percentage In Their

a cccendeuusudocuoscecenc

TABLE OF AUTHORITIES

CASES

Ala. Leg. Black Caucus v. Alabama,

120

135 S. Ct. 1257 (2015)... 11, 12, 14, 15

Bartlett v. Strickland,

556 U.S. 1 (2009).......c.cecccceccceceesceseeece 7, 8, 12, 13

Chapman v. Meier,

sn cienatacamicdescovenis sacsosenseses

iv

FEC v. Wis. Right to Life, Inc.,

I a al =

Georgia v. Ashcroft,

539 U.S. 461 (2003)............. Siulaaatdilebitee ticdln Sabie 11

Johnson v. De Grandy,

TE SIE el ea ee 8, 24

Ketchum v. Byrne,

740 F.2d 1398 (7th Cir. 1984)...................000.00 13

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006).......... 22M TBS ee 5,6,7,8

Mahan v. Howell,

I iar sasis a rascthivanesabnaadiceena 14

Miller v. Johnson,

ESE arene este na een Mesa s 6,7

Neal v. Coleburn,

689 F. Supp. 1426 (E.D. Va. 1988)................... 13

Roman v. Sincock,

Se le I CE ciniccentsiccssensinsiaconss I Ue 14

Shaw v. Reno,

REESE ene eer eae 6

Shirt v. Hazeltine,

461 F.3d 1011 (8th Cir. 2006)............0000000c. 13

Thornburg v. Gingles,

Se Mp ciiiniieciaticlisecsiissdasiasinbitndsnolininiiens 26

Voinovich v. Quilter,

er Ie, Se CN siirscesisndsacitinsinnenesttsunosoin 7, 21, 23

Wilkins v. West,

264 Va. 447, 571 S.E.2d 100 (Va. 2002)........... 10

STATUTES

eR I i atauameennumens acetate 6

SI I I aici it 6

OTHER AUTHORITIES

Alvaro Bedoya, Note, The Unforeseen Effects

of Georgia v. Ashcroft on the Latino

Community, 115 Yale L.J. 2112 (2006)......25, 26

Br. of Ellen Katz and the Voting Rights

Initiative as Amicus Curiae, Shelby

County v. Holder, No. 12-96 (Appendix

FF IG Cig WR tsticesed nctcacsontenicescecorseccteses 28

Ellen D. Katz, et al., Documenting

Discrimination in Voting: Judicial

Findings Under Section 2 of the Voting

Rights Act Since 1982 Ann Arbor, MI:

University of Michigan Law School

ee iidiccibeaistidiahchicbameiniastidatids Scunedictiansutsiiee’ 27, 28

vi

About Us, NATIONAL BLACK CHAMBER OF

COMMERCE,

http: / / www.nationalbcc.org /about-us. ...........-. 1

James W. Loewen, Report on Factual and

Statistical Issues Raised in “Bill of

Complaint" filed by Douglas West, et al.

With Comments on Expert Reports by

Drs. David Lublin and Alan Lichtman

STE eee een 9,10, 12,18

Kim Geron and James S. Lai, Beyond

Symbolic Representation: A Comparison

Of The Electoral Pathways and Policy

Priorities of Asian Americans and Latino

Elected Officials, 9 Asian L.J. 41 (2002)... 24, 26

Melissa R. Michelson, Majority-Latino

Districts And Latino Political Power, 5

Duke J. Const. Law & Pub. Pol'y 159

ROARS ANCES PE Baa RI 23, 24, 25, 27

Roberto Suro, Richard Fry and Jeffrey S.

Passel, Hispanics and the 2004 Election:

Population, Electorate and Voters (June

I teniin accicolnddniddbnibanababiinniainiainsewenst 27

Statistical Portrait of Hispanics in the United

States, Pew Research Center (April 19,

SE iii ck diatiniglicc seh isiessaiabtenadaplliblidahiningaonnninietogs 23

STATEMENT OF INTEREST OF AMICI

CURIAE

Incorporated in Washington, D.C. and

organized under Section 501(c\(3) of the Internal

Revenue Code, the National Black Chamber of

Commerce (‘NBCC’)! is dedicated “to economically

empowering and_ sustaining African-American

communities through entrepreneurship and

capitalistic activity within the United States.” See

About Us, NATIONAL BLACK CHAMBER OF COMMERCE,

http: / /www.nationalbcc.org/about-us. The NBCC

advocates on behalf of 2.4 million African-American

owned businesses in the United States.

The NBCC utilizes several avenues to achieve

its goal of empowering African-American

communities in the United States. First, the NBCC

provides education to African-American communities

concerning the fundamentals of capitalism. Second,

the NBCC works with corporations to ensure

compliance with Title VI of the 1964 Civil Rights Act

at all levels of government. Third, the NBCC

provides educational seminars to African-American

business leaders on obtaining financial capital.

1 No counsel for a party authored this brief in whole

or in part, and no counsel or party made a monetary

contribution intended to fund the preparation or

submission of this brief. The Legacy Foundation, a

501(c\(3) charitable corporation incorporated in

Iowa, paid for this brief. On September 9, 2016 and

September 14, 2016, respectively, counsel for

Appellants and counsel for Appellees gave their

consent to the filing of amicus briefs in this case.

2

Fourth, the NBCC provides non-partisan

information to Congress and federal agencies

through expert testimony on issues of importance to

the African-American community. An example of

previous testimony is NBCC’s president Harry

Alford’s testimony before the U.S. Commission for

Civil Rights on the negative impact of Project Labor

Agreements on African-American and Hispanic

businesses. 98% of African-American and Hispanic

construction companies are non-union shops and

Project Labor Agreements negatively impact

African-American and Hispanic owned businesses

and workers.

The Hispanic Leadership Fund (‘HLF’), is

incorporated in Virginia and organized under

Section 501(c)(4) of the Internal Revenue Code. HLF

is a national Hispanic advocacy organization that is

exclusively governed by Ilispanics. As a social-

welfare organization, HLF advocates for policies that

strengthen working families and small] businesses.

HLF emphasizes those policies that particularly

impact Hispanic families and small business owners.

SUMMARY OF THE ARGUMENT

Assuming that this Court subjects Virginia’s

House of Delegate Districts to strict scrutiny, the

challenged districts at issue in this case are

narrowly tailored. It is undisputed that the 12

majority-minority districts were drawn to comply

with Section 5 of the Voting Rights Act (‘VRA’).

(Appellants’ Br. at 3) (citing JA299); (Appellees’ Br.

at 50) (citing J.S.App.102-106). This Court has

determined that compliance with Section 5 is a

compelling interest.

First, the Constitution and the decisions of

this Court recognize that redistricting is a sovereign

and significant function vested in the state

legislatures. This guarantees optimal citizen

participation in republican governance.

Second, §§ 2 and 5 of the VRA do not divest

legislatures of this discretion, rather, these sections

allow states the discretion to determine the best

method of compliance.

Third, the General Assembly had evidence

that a 55% Black Voting Age Population (‘BVAP’)

target was necessary for African-American residents

of those districts to elect their preferred candidate of

choice. §5 of the VRA prohibits legislatures from

decreasing BVAP in wmajority-minority districts

without evidence of a _ reduction in_ racial

polarization. The Appellants want this Court to

impose a requirement that legislatures cannot craft

majority-minority districts of 55% without evidence

that the racial polarization exists to justify 55%.

This is a ‘heads I win, tails you lose’ approach to

redistricting that this Court should reject.

Furthermore, in crafting remedial districts,

courts have imposed a 65% majority-minority

threshold. If Virginia has the discretion to comply

with the VRA, then certainly 55% is narrowly

tailored.

Fourth, in redistricting cases, this Court has

shown a reluctance to impose mathematical

precision in the crafting of districts. Adopting

Appellants’ standard would require precise political

predictive judgments and mathematical precision to

4

determine what constitutes narrowly tailored.

Fifth, nearly all members of the Black Caucus

in Virginia’s House of Delegates supported the

redistricting plan. Members’ analyzed the

demographic data, past elections results, and

population movement trends and determined that

for Virginia’s 12 majority-minority House districts to

continue allowing African-Americans to elect their

preferred candidate of choice, those districts needed

approximately 55% BVAP. This is sufficiently

narrowly tailored. To find that these districts were

not narrowly tailored would allow Appellants to use

this Court’s decision in Shaw v. Reno and Shaw v.

Hunt to take away the very discretion the VRA

provides. Because nearly all members of the Black

Caucus supported this plan and had substantive

input in developing the plan, this is significant

evidence that Virginia’s House of Delegate map is

not a racial gerrymander and is narrowly tailored.

Sixth, if this Court finds that Appellees have

crafted a racial gerrymander, States will cease

voluntarily complying with §2 of the VRA. This is

because the burden of proof under a Shaw claim is

on the State whereas the burden of proof under §2 of

the VRA is on the plaintiff. This will be particularly

harmful to Hispanics. Hispanics generally do not

reside in geographically compact districts, are not

politically cohesive, and racial bloc voting does not

prevent Hispanics from electing their preferred

candidate. Thus, it is very difficult for Hispanics to

satisfy the Gingles preconditions. The evidence

supports this fact because Hispanics do not enjoy

high success rates in §2 litigation.

This will have the effect of decreasing

Hispanic representation in Congress. Since 1998,

most Hispanics in Congress come from majority-

minority districts. Adopting Appellants’ standard

here and not permitting states to draw districts with

the requisite discretion will have the unacceptable

and unintended consequence of fewer majority-

minority districts and lower Hispanic representation

in Congress.

ARGUMENT

I. STATE _ LEGISLATURES HAVE

D I STR

THAT N OWLY TAI D TO

SATISFY THE VOTING RIGHTS ACT.

The Constitution of the United States vests

state legislatures with the discretion to craft

legislative districts. The Voting Rights Act does not

divest legislatures of this jurisdiction. In fact, this

Court has previously ruled that states have

discretion in determining how best to comply with

the VRA.

Eight justices of this Court have previously

ruled that compliance with Section 5 of the VRA is a

compelling state interest. See League of United Latin

Am. Citizens v. Perry, 548 U.S. 399, 518 (2006)

(hereinafter, ‘LULAC’) (Scalia, J., Roberts, C.J.,

Thomas & Alito, JJ.); id. at 475 n.12 (Stevens and

Breyer, JJ.); id. at 485 n.2 (Souter and Ginsburg,

JJ.).

When analyzing whether a district is narrowly

tailored to achieve the State’s interest in complying

with the VRA, courts have recognized that

legislatures have discretion.

Appellants, however, are attempting to use

this Court’s decision in Shaw v. Reno, 509 U.S. 630

(1993), to divest legislatures of the discretion the

Constitution vests and this Court’s decisions in the

VRA confirm. See (Appellants’ Br. at 57-58)

(criticizing district court majority opinion for

recognizing legislators’ discretion in _ crafting

narrowly tailored districts to comply with Section 5

of the VRA). This Court should reject that attempt.

A. Neither §§ 2 nor 5 Of The VRA Divests

State Legislatures | Of Their

Constitutional Discretion In Crafting

Districts.

Both the U.S. Constitution and Virginia’s

Constitution vest Virginia’s General Assembly with

the authority to craft legislative districts. See U.S.

Const. art. I, § 4; see Va. Const. art. II, § 6. This

Court has_ repeatedly confirmed what _ the

Constitution says, that ‘reapportionment is

primarily the duty and responsibility of the State...

.”” See Chapman v. Meier, 420 U.S. 1, 27 (1975).

Redistricting is best left to the state legislatures

because the crafting of district boundaries “is one of

the most significant acts a State can perform to

ensure citizen participation in republican _ self-

governance.” LULAC, 548 U.S. 399, 416 (2006). In

crafting these districts, courts must afford state

legislatures the “[dJiscretion to exercise the politicai

judgment necessary to balance competing interests.”

Miller v. Johnson, 515 U.S. 900, 915 (1995).

Therefore, federal courts are barred from

intervening in redistricting absent a violation of

federal law. See Voinovich v. Quilter, 507 U.S. 146,

156 (1993); see also Miller, 515 U.S. at 928-29

(O’Connor, J., concurring) (stating that the Court’s

decision did not “throw into doubt the vast majority

of the Nation's 435 congressional districts” including

those districts where race was considered).

When this Court proceeds to determine

whether a district is narrowly tailored to achieve the

State’s interest in compliance with the VRA, neither

§§ 2 nor 5 divest legislatures of their discretion in

crafting their districts. This Court has previously

recognized that both §§ 2 and 5 “[a]llows States to

choose their own method of complying with the

Voting Rights Act ... .” Bartlett v. Strickland, 556

U.S. 1, 23 (2009); see also LULAC, 548 U.S. at 519

(Scalia, J., concurring in part and dissenting in part)

(“In determining whether a redistricting decision

was reasonably necessary, a court must bear in mind

that a State is permitted great flexibility in deciding

how to comply with § 5's mandate.”). The VRA

requires only that states not diminish a minorities’

ability to elect their preferred candidates of choice.

Therefore, under the VRA, a State retains its

discretion on how to comply with the Act. See

Voinovich, 507 U.S. at 155-56 (holding that a state is

not required to prove that a mayjority-minority

district is required under §2 of the Voting Rights Act

before crafting a majority-minority district and

reiterating that in §2 litigation, the burden of proof

is on the plaintiff).

But here Appellants are using the Equal

Protection Clause to force Appellees to prove that

complying with Section 5 was necessary. See, e.g.,

(Appellants’ Br. at 57-58). Adopting Appellants’

proposed standard, however, will place courts in the

“untenable position of predicting many political

variables and tying them to race-based assumptions”

to determine what the absolute minimum level of

minority voting age populations is necessary to elect

the minority’s preferred candidate of choice. See

Bartlett, 556 U.S. at 17. In the §2 context, this

problem is further compounded because §2 applies

nationwide. See id. at 18. Thus, under Appellants’

standard, if a legislature crafted a district to comply

with §2, courts will be required to determine the

lowest number of minorities necessary in a majority-

minority district in order for a minority to elect their

preferred candidate of choice for both the familiar

two-party election contests at the federal level, as

well as for the nonpartisan city commission and

school board elections. See id.

The Constitution vested the democratically

elected branch of government with crafting

legislative districts precisely because the legislature

is in the best position to evaluate whether

communities have minorities who are able to form

coalitions with other “racial and ethnic groups” to

elect candidates of their choice. See Johnson v. De

Grandy, 512 U.S. 997, 1020 (1994). Appellants’

standard would divest legislatures of this sovereign

and significant responsibility and arrogate it to the

courts. See LULAC, 548 U.S. at 416. Appellants’

theory, therefore, is a step deeper into the “political

thicket” of redistricting.

B. ellants’ Theory Conflicts With The

VRA's_ Preference For Supermaijority

Districts.

Prior to reducing BVAP in majority-minority

districts, the VRA requires the State to support its

decision with evidence of a decrease in racial

polarized voting.

Under Appellants’ theory, however, for a

district to maintain its BVAP and be narrowly

tailored, the Appellants want the State to produce

evidence that the district requires the BVAP

percentage. This “heads I win, tails you lose”

approach to redistricting is incorrect and must be

rejected.

Furthermore, when courts devise remedial

plans, they often use a 65% minority population

guideline. Considering how courts have used

guidelines, Virginia’ 55% target must be narrowly

tailored.

L. The Evidence Before The Virginia

General Assembly Required The

House To Maintain The 12

Majority-Minority Districts; To

Do Otherwise Risked

Retrogression.

Subsequent to the Loewen report, see infra at

10, and due to Virginia’s off-year election calendar,

the number of elections available for analysis was

small. JA2020-21. The Virginia delegates reviewed

evidence of population trends and previous election

10

results and determined that a target of 55% BVAP

was necessary to comply with §5 of the VRA. See

infra at 17.

From the previous round of a redistricting, an

expert report was produced in the Wilkins litigation?

that analyzed racial polarization and the ability of

African-Americans to elect their preferred candidate

of choice. The report concluded that districts

between 55% and 62% are not packed because

throughout the 1990s, African-Americans were

unable to elect their preferred candidate of choice in

any district below 52.5%. The report warned that

decreasing BVAP in districts with 55% to 62% BVAP

would jeopardize the ability of African-Americans in

those districts to elect their preferred candidate of

choice. See James W. Loewen, Report on Factual and

Statistical Issues Raised in "Bill of Complaint" filed

by Douglas West, et al. With Comments on Expert

Reports by Drs. David Lublin and Alan Lichtman at

43 (Aug. 31, 2001) (reproduced at App. A., 4-5).

Importantly, when analyzing whether a

district is narrowly tailored to comply with the VRA,

the report made an important concession:

determining the precise number of minority voting

age population for a district is “not an exact science.”

See id. at 43. This comment is unremarkable

considering that with election polls, there is

generally a margin of error of plus or minus 3%.

Therefore, to craft a narrowly tailored district to

2 Wilkins v. West, 264 Va. 447, 571 S.E.2d 100 (Va.

2002).

11

comply with §5 of the VRA, States must have some

statistical cushion when crafting districts.

The House of Delegates was, however, without

evidence that there was a reduction in racially

polarized voting. §5 therefore prohibits a reduction of

BVAP in the 12 majority-minority districts.

Appellants’ theory of the Equa) Protection Clause, on

the other hand, requires that for a district to be

narrowly tailored, Virginia must prove that racially

polarized voting exists such that the 55% target is

necessary. (Appellants’ Br. at 57-58). This is a classic

“heads I win, tails you lose” approach to redistricting

that is incorrect and must be rejected.

After the Supreme Court’s ruling in Georgia v.

Ashcroft, 539 U.S. 461 (2003), Congress amended §5

of the VRA to adopt the views articulated in Justice

Souter’s dissent. See Ala. Legis. Black Caucus v.

Alabama, 135 S. Ct. 1257, 1273 (2015). In his

dissent, Justice Souter made clear that where there

is evidence of high racial polarization in voting or

where there is insufficient evidence of white

crossover voting, “a reduction in supermajority

districts must be treated as potentially and fatally

retrogressive, the burden of persuasion always being

on the State.” See Georgia, 539 U.S. at 493 (Souter,

J., dissenting). Therefore, any reduction in minority

voting strength from the Benchmark level is

evidence of retrogressicn, unless the jurisdiction can

prove that this reduction did not harm the ability of

the minority community to elect their preferred

candidate of choice. See Georgia, 539 U.S. at 493.

12

Justice Souter’s presumption, combined with

Appellants’ theory, is the classic “heads I win, tails

you lose approach [and] cannot be correct.” See FEC

v. Wis. Right to Life, Inc., 551 U.S. 449, 471 (2007).

Appellants contend that the Equal Protection Clause

requires the reduction of BVAP from 55% to 50%

unless the State can prove racially polarized voting

at levels that make the 55% target necessary.

(Appellants’ Br. at 57-58). Adopting Appellants’

theory places Virginia between a voting rights Scylla

and an equal protection Charybdis that will subject

states to incessant litigation. See Ala. Legis. Black

Caucus, 135 S. Ct. at 1273-74 (“The law cannot lay a

trap for an unwary legislature, condemning its

redistricting plan as either (1) unconstitutional

racial gerrymandering should the legislature place a

few too many minority voters in a district or (2)

retrogressive under §5 should the legislature place a

few too few.”) (emphasis added). Furthermore, this

Court’s pronouncement in Alabama Legislative

Black Caucus recognized what the Loewen report

stated: that the precise level of minority voting age

population in a district that is necessary for

minorities to elect their preferred candidate of choice

is not an exact science. App. A. 4.

Moreover,, this Court cannot adopt

Appellants’ standard without divesting states of

their discretion to narrowly tailor districts to comply

with §5. See Bartlett, 556 U.S. at 23 (“Much like § 5,

§ 2 allows States to choose their own method of

complying with the Voting Rights Act.”).

This Court should affirm the district court so

Virginia can maintain its constitutionally vested

13

discretion to craft districts that are narrowly tailored

to comply with §5.

ii. When Courts Become Involved In

§2 Cases, Courts Regularly

Impose Supermajority Remedial

Districts.

When courts do become involved in

redistricting, t)ey routinely require the legislature

to draw stronger majority-minority districts beyond

the 55% target that the Virginia House of Delegates

used. See, e.g., Shirt v. Hazeltine, 461 F.3d 1011,

1023-24 (8th Cir. 2006) (stating that the remedial

plan in that case crafted districts that were greater

than 65% Native-American and further noting that

courts generally use a 65% guideline when crafting

remedial districts in §2 cases, and concluding that

§5 was not violated where the remedial plan created

an additional Native American majority-minority

district); see also Ketchum v. Byrne, 740 F.2d 1398,

1402 (7th Cir. 1984) (recognizing that there exists a

65% guideline in remedying Section 2 violations);

Neal v. Coleburn, 689 F. Supp. 1426, 1438 (E.D. Va.

1988) (same). Additionally, §2 only protects those

districts that are greater than 50% minority

population. See Bartlett, 556 U.S. at 19-20. Courts

have derived this 65% guideline from evidence based

assumptions. Courts take a 50% +1 majority and add

an additional “5% for young population, 5% for low

voter registration and 5% for low voter turnout... .”

Ketchum, 740 F.2d at 1415.

Virginia’s 55% target is narrowly tailored.

Courts often order remedial plans containing a

14

supermajority-minority district. This Court should

not disturb the General Assembly’s discretionary

determination of a 55% BVAP target.

C. In_Redistricting Cases, Courts Are

Reluctant To Adopt Doctrines Imposing

Mathematical Precision.

Appellants’ proposal—that a majority-

minority district is narrowly tailored only if it is just

barely sufficient for the minority to elect their

preferred candidate of choice (Appellants’ Br. at

57)—is in tension with this Court’s reluctance to

demand mathematical precision under the Equal

Protection Clause’s One Person, One Vote

jurisprudence.

This reluctance to demand precise numbers

in §5 is consistent with this Court’s reluctance of

creating precise numerical numbers in the One

Person, One Vote context. See Roman v. Sincock, 377

U.S. 695, 710 (1964) (“[I]t is neither practicable nor

desirable to establish rigid mathematical standards

for evaluating the constitutional validity of a state

legislative apportionment scheme under the Equal

Protection Clause.”); Mahan v. Howell, 410 U.S. 315,

329 (1973) (“Neither courts nor legislatures are

furnished any specialized calipers that enable them

to extract from the general language of the Equal

Protection Clause of the Fourteenth Amendment the

mathematical formula that establishes what range

of percentage deviations is permissible, and what is

not.”); see also Ala. Legis. Black Caucus, 135 S. Ct. at

1273 (stating that courts should not rely

mechanically upon numerical percentages); see also

15

App. A., 4-5. It would be a strange result where the

Equal Protection Clause under a Shaw claim would

require a State to produce with mathematical

precision the lowest number of minority voters

required to be narrowly tailored, but then for a One

Person, One Vote claim, hold that the Equal

Protection Clause does not demand mathematical

precision and affords legislatures the discretion to

achieve traditional redistricting criteria.

Consultation Wi e Approval

Of The House Black Caucus.

The 12 majority-minority districts are

narrowly tailored because the General Assembly

analyzed the population trends and voting history of

each district. The House of Delegates prudently

determined that a 55% target was necessary for the

African-American members residing in_ those

districts to elect their preferred candidate of choice.

See Ala. Leg. Black Caucus, 135 S. Ct. at 1273-74.

This determination was made in consultation with

and with the assent of the members of the Virginia

House Black Caucus.

As Appellees correctly note, Delegate Chris

Jones assiduously traversed the Commonwealth to

obtain the opinions of “local elected officials,

registrars, community leaders . . . [and] private

citizens.” JA278, 594 (Appellees Br. at 7). As is

discussed infra at 18, Democrats praised Delegate

Chris Jones for his bipartisan efforts. (JA2)6-17). As

16

a result, a supermajority of Democrat Delegates and

a supermajority of Delegates within the Black

Caucus supported Delegate Jones’s redistricting

plan. JA1175.

Delegate Rosalyn Dance (D-63), of Petersburg,

explained why the redistricting committee believed

that the 55% BVAP was necessary. Delegate Dance

supported the plan precisely because “it does support

the 12 minority districts that we have now and it

does provide the 55% voting strength that I was

concerned about.” (Dance 1, 0:34-0:45) (available at

http://hispanicleadershi

uploads/2016/1 -36- .m4yv) (last

visited Oct. 24, 2016) . She stated that as an African-

American, she was most concerned with compliance

with the Voting Rights Act, and making sure that

the 12 minority districts were strong. (Dance 2, 1:54-

2:07) (available at

. : (last

visited Oct. 24, 2016). Delegate oo stated that

she and the redistricting committee arrived at the

55% target because she “looked at the model and

looked at the trending as far as what happened over

the last 10 years.” (Dance 1, 0:46-0:51) The

population trends that comcerned Delegate Dance

were the population shifts out of and around the

districts. (Dance 2, 2:10-2:17). She stated that “to

maintain those 12 districts, it required some

movement and sometimes not perfect adjustments

between precincts.” (Dance 2, 2:18-2:27). Delegate

Dance then provided an example of why the

committee arrived at the 55% target:

Delegate Tyler’s area, the 75th because

17

Delegate Tyler is an African-American

that now finally sits in the minority

seat that’s been there for years. But

there have been three tries’ by

minorities in the past to win that seat

and they were not able to do so and if

that district is below that 55% voting

strength, then I don’t think she would

be able to hold the seat that she now

holds today.

(Dance 1, 0:59-1:27).

The 55% level of voting strength was an issue

that greatly concerned Delegate Dance and she

stated that the 55% target made her happy to

support the plan. (Dance 1, 1:30-1:36). This goal

provides African-Americans with a voice that

enables them to choose the preferred candidate of

their choice. (Dance 1, 2:20-2:35).

The use of a 55% target was not done in a

manner to harm African-Americans. Delegate

Lionell Spruill, Sr. (D-77), of Chesapeake, noted that

Delegate Chris Jones listened to the concerns of the

Black Caucus and answered mostly every concern of

the Black Caucus. (Spruill 1, 1:25-1:35) (available at

http://hispanicleadershipfund.org/wp-

content/uploads/2016/10/PX-36-

Spruill _Part_01l.mp4). Delegate Spruill continued

saying that the Black Caucus had input and because

of this, Delegate Spruill told future plaintiffs:

Se when you go to court don’t say

18

they’re trying to dilute the black vote® .

.. So 1 ask you all to dothis. Is that if

you are going to look at and look out for

the black community, we ask you all,

look at who has come to us, look at who

has worked with us to try to make sure

that we maintained what we got. Who

has been that person? That person has

been Delegate Chris Jones.

(Spruill 1, 5:32-5:37; 9:59-10:16) (available at

content/uploads/2016/10/PX-36-

Spruill Part 02.mp4)

In fact, Democrat Delegate David Englin took

great offense to anyone who suggested this plan was

harmful to African-Americans. After reciting the

3 Delegate Spruill’s first election victory was in 1993

where he first defeated a white Democrat in the

primary. This election is discussed in the Loewen

report. This lends more import to Delegate Spruill’s

statements, since he was involved in the Wilkins

litigation and his 1993 election was one of those

studied where the report concluded that if the

African-American population in Spruill’s district is

reduced from majority to minority population,

African-Americans may be unable to elect Delegate

Spruill as their preferred candidate of choice. See

App. A., 1-3. See also (Spruill 2, 0:14-1:57)

(discussing the history of redistricting efforts in

Chesapeake in the 1980s) (available at

http://hispanicleadershipfund.org/wp-

content/uploads/2016/10/PX-34-Spruill.m4v) (last

visited Oct. 24, 2016).

19

litany of the plans’ objective mathematical facts and

how it was the best plan presented, (Englin, 2:15-

4:02) (available at

http://hi icle

load -03- in.m4v) (last

visited Oct. 24, 2016), he stated that to suggest that

he and other Democrats who were supporting this

redistricting plan were supporting a plan that was

“bad for minorities” and were therefore “trying to

harm minorities” or “not sufficiently standing up for

minorities” is “an affront and offense that is not

borne out by the facts.” (Englin, 4:40-4:43; 5:07-5:20).

To Delegate Englin, to say that the redistricting plan

was harmful to minorities was offensive because:

Members of this Democratic Caucus

time and again have fought in

subcommittee, in committee, on this

floor, and in their communities, some

people for decades in their

communities, to advance and protect

the rights and freedoms of minorities of

all kinds.

(Englin, 4:50-5:07).

The Black Caucus Democrats and Democrat

Delegate Englin all acknowledged that although the

Republicans were not required to care “one iota” of

what the Democrats wanted in drafting the plan,

Delegate Englin stated that Democrats did have “a

substantive role in developing the plan before us.”

(Englin, 4:10-4:24). Delegate Spruill too

acknowledged that the Black Caucus was able to

provide substantive input, saying that Delegate

Chris Jones was the only person to come to the Black

20

Caucus to consult with them and address their

concerns, saying that Chris Jones was fair, and that

the Black Caucus got “two or three bones.” (Spruill 1,

1:25-1:45); see also (Spruill 2, 3:55-4:04; 4:40-5:08)

(available at htp/hispanicleadershipfund org/wp-

content/ -Spruill (last

visited Oct. 24, my alent _ sre used this

reasoning in stating that she thought Delegate Chris

Jones’ plan was the best compromise plan. She

succinctly summarized how the plan was crafted:

It is truly an example, I found to be, of

bipartisanship because there were no

grey lines. Whether you’re a Democrat

or a Republican and you’re assigned to

draw those lines, you would have found

much difficulty .. . But I will say that it

is one that had a lot of impact from both

sides of the aisle. I know because I tried

to reach out to all those that I could on

my side of the aisle and I know that our

chair Delegate Jones was willing to

listen to anything and everything that

we threw to him to consider as he

developed his plan.

(Dance 2, 0:57-1:52).

In the end, although perhaps not perfect, the

delegates were happy with their districts. Delegate

Onzlee Ware (D-11), of Roanoke, and a member of

the Black Caucus explained his support of how the

plan crafted his district:

They fixed my district from the atrocity

that it was ten years ago. They made it

21

compact. They made it contiguous. They

made it a district of community

interest. . . . For once in the history of . .

. if we get something that we want, why

should we be ashamed of it? Why

should I be upset about the fact that I

have a good district with African-

American and white people in it?

See (Ware, 2:20-2:31; 3:49-4:03) (available at

http://hi icle hipfund.o -

content/uploads/2016/10/PX-41-Ware.m4v) (last

visited Oct. 24, 2016).

These floor speeches are probative evidence

that there was no intentional discrimination on the

part of the Virginia General Assembly when it

adopted this plan. See Voinovich, 507 U.S. at 160

(rejecting an intentional discrimination claim in part

because the redistricting chairman relied on the

opinions of the Ohio NAACP, the Black Elected

Democrats of Ohio, and other civil rights groups in

crafting legislative districts and the NAACP

supported the plan); see Georgia, 539 U.S. at 484

(“[I]t is also significant, though not dispositive,

whether the representatives elected from the very

districts created and protected by the Voting Rights

Act support the new districting plan”); see also id. at

503 (Souter, J. dissenting) (“The District Court

majority explained that the ‘legislators' support is, in

the end, far more probative of a lack of retrogressive

purpose than of an absence of retrogressive effect.””)

(emphasis in the original). Instead, this evidence

demonstrates that there were substantial

discussions between Democrats and Republicans,

racial minorities and non-minorities, and these

22

discussions resulted in the enacted districts. That

nearly all African-American Delegates supported

this plan is significant evidence that Virginia’s

adopted House plan is not the product of intentional

discrimination, nor does it have the effect of

intentional discrimination.

Virginia had discretion in crafting the 12

majority-minority districts. It properly exercised this

discretion in consulting with all House members,

including those of the Black Caucus. As a result of

this consultation, and after reviewing the available

data, the House of Delegates determined that a 55%

BVAP target was necessary for African-American

residents in those districts to elect their preferred

candidate of choice. This Court should not disturb

the General Assembly’s discretionary act.

I. HISPANICS ARE THE FASTEST

GROWING _ DEMOGRAPHIC _ GROUP

AND THIS WILL LIMIT THEIR

REPRESENTATIVE GROWTH.

Appellants’ standard under which the mere

use of minority voting percentage targets triggers

strict scrutiny, thus compelling the State legislature

to prove that the district is narrowly tailored, is

especially harmful to Hispanics.

Appellants’ standard that the mere use of

BVAP targets triggers strict scrutiny, (Appellants’

Br. at 5), will force State legislators to halt

voluntarily complying with §2 of the VRA. This is so

because if the mere use of minority voting age

targets in crafting majority-minority districts

triggers strict scrutiny—a standard where the State

23

has the burden of proof—legislatures will opt to

simply avoid voluntarily complying with §2 in

crafting majority-minority districts. This will force

plaintiffs to sue under §2 where plaintiffs have the

burden of proof. See Voinovich, 507 U.S. at 155-56.

This will have the practical effect of

decreasing the number of Hispanic majority-

minority districts throughout the country, despite

the fact that Hispanics are this country’s fastest

growing population. This also means that going into

the next decade, there will likely be

underrepresentation of Hispanics.

L. Hispanics Are The Fastest Growing

Population Group In The United States.

Firstly, Hispanics are the fastest growing

population group in the United States. See Melissa

R. Michelson, Majority-Latino Districts And Latino

Political Power, 5 Duke J. Const. Law & Pub. Pol'y

159, 172 (2010). The U.S. Census predicts that by

2050, Hispanics will represent one-third of the

country’s population. See id. A recent study by the

Pew Research Center on Hispanic Trends

demonstrates that in 2014, Hispanics comprised

17.3% of the U.S. population. See Statistical Portrait

of Hispanics in the United States, Pew Research

Center (April 19, 2016) (available at

http://www.pewhispanic.org/2016/04/19/statistical-

portrait-of-hispanics-in-the-united-states-key-

charts/) (last visited Oct. 20, 2016). U.S. Census

estimates from 2015 show that the Hispanic

population will continue to grow from its current

level of 55.3 million to 119 million in 2060. See id.

24

As the Hispanic population grows, states

should be allowed to increase the number of

Hispanic majority districts. See Johnson, 512 U.S. at

1000.

il. Hispanic Majority Districts Are

Necessary For Hispanics To Elect Their

Preferred Candidates Of Choice.

Hispanic majority districts are necessary for

Hispanics to elect their preferred candidate of choice.

See Melissa R. Michelson, Majority-Latino Districts

And Latino Political Power, 5 Duke J. Const. Law &

Pub. Pol'y at 174-75. In 2008, Hispanics were 15.4%

of the population. This means that in 2008 for the

U.S. House of Representatives to reflect that

population, there should be sixty-seven seats in the

House. See id. at 166. But only twenty-five Hispanics

were in the House, and of these twenty-five Hispanic

congressional representatives, 19 were elected from

majority-Hispanic districts. See id. at 166-67;

compare with See Kim Geron and James S. Lai,

Beyond Symbolic Representation: A Comparison Of

The Electoral Pathways and Policy Priorities of

Asian Americans and Latino Elected Officials, 9

Asian L.J. 41, 50 (2002) (noting that in 1998, there

were 39 African-American representatives in the

U.S. House, 23 of which were elected from African-

American-majority districts and noting that in the

same year, there were 19 Hispanics, 17 of which

were from Hispanic majority districts). Currently,

there are 32 Hispanic members in the U.S. House of

Representatives. 23 are from Hispanic majority

districts, with an additional three Representatives

from districts containing 46.7%, 49.4%, and 49.8%

Hispanic population. See Appendix 8B; see also

25

Alvaro Bedoya, Note, The Unforeseen Effects of

Georgia v. Ashcroft on the Latino Community, 115

Yale L.J. 2112, 2136 (2006) (“Some scholars have

placed the average population threshold necessary

for Hispanics to have the ability to elect their

candidate of choice between 55% and 60% Latino.”).

Hispanic-majority districts are therefore

needed for Hispanics to elect their preferred

candidate of choice. This is because the Hispanic

community’s “lower levels of citizenship; lower levels

of English-language proficiency; and _ the

demographic nature of the Latino community,

including lower median levels of age, income, and

education” all contribute to low voter turnout. See

Melissa R. Michelson, Majority-Latino Districts And

Latino Political Power, 5 Duke J. Const. Law & Pub.

Pol'y at 172-73. Low voter turnout limits the ability

of Hispanics to win in districts where they do not

constitute a majority or a supermajority. See id. at

174. Hispanic majority districts remain necessary for

Hispanics to elect their candidate of choice. See id.

State legislatures must have the discretion to

draw Hispanic-majority districts that adhere to

traditional redistricting criteria. Subjecting each

Hispanic-majority district to strict scrutiny will force

States to avoid crafting those districts. This in turn

will force Hispanics to file civil lawsuits under §2 of

the VRA.

26

iii. If Hispanics Are Forced To Sue For

Mayjority-Minority Districts Under §2,

They Will Likely Not Preva.dd Because Of

The Three Gingles Preconditions.

Hispanics already face a steep climb to prevail

under §2, because to even have a chance at

prevailing, they must first satisfy the three Gingles

preconditions. See Thornburg v. Gingles, 478 U.S.

30, 50-51 (1986) (stating that for plaintiffs to prevail

under §2, plaintiffs must first prove three

preconditions; (1) that the minority population is

sufficiently large and _ sufficiently compact to

constitute a majority in a district; (2) that the

minority is politically cohesive; and (3) there is racial

bloc voting preventing the minority from electing

their candidate of choice).

First, Hispanics generally do not live in

geographically compact areas. See Kim Geron and

James S. Lai, Beyond Symbolic Representation: A

Comparison Of The Electoral Pathways and Policy

Priorities of Asian Americans and Latino Elected

Officials, 9 Asian L.J. 41, 46 (2002); see also Alvaro

Bedoya, Note, The Unforeseen Effects of Georgia v.

Ashcroft on the Latino Community, 115 Yale LJ. at

2139 (“This compactness requirement is more

difficult for Hispanics to meet, given that they are

more residentially dispersed than African-

Americans.”).

Second, Hispanics are not necessarily

politically cohesive. In 2004, approximately 44% of

Hispanic voters voted for Republican presidential

nominee, George W. Bush. See Roberto Suro,

27

Richard Fry and Jeffrey S. Passel, Hispanics and the

2004 Election: Population, Electorate and Voters

(J ie vis rps (available at

ar memes ee = (last visited Oct. 20, 2016). In

2006, the ratio of Hispanic Democrats to Hispanic

Republicans was 2.6 to 1. See Majority-Latino

Districts And Latino Political Power, 5 Duke J.

Const. Law & Pub. Pol'y at 168. On closer inspection,

the lack of political cohesiveness expands on the

basis of national origin. The ratio of Mexican

American Democrats to Republicans is 2.9 to 1;

Puerto Ricans prefer Democrats 3.2 to 1; and Cuban

Americans prefer Republicans 1.5 to 1. See id.

Furthermore, even though there is some evidence

that Hispanics “prefer to vote for coethnic

candidates, they do not constitute as cohesive a

voting bloc as do African Americans .. . .” See id. at

171.

Third, and finally, although there is some

evidence of racial bloc voting against Hispanics

preferred candidate of choice, generally “several

studies find that White voters are generally willing

to vote for Latino candidates.” See id. at 163.

Evidence supports that it is difficult for

Hispanics to prevail in §2 litigation. Of the 96 §2

VRA cases involving Hispanic plaintiffs that were

litigated from complaint to determination of liability,

Hispanics prevailed independently only 7 times

(7.2%). 4 Ellen D. Katz, et al., Documenting

4 Of all successful §2 cases litigated from Complaint

to determination liability, there were 14 cases that

involved multiple minority groups. Ellen D. Katz, et

28

Discrimination in Voting: Judicial Findings Under

Section 2 of the Voting Rights Act Since 1982 Ann

Arbor, MI: University of Michigan Law School at 9

(2005). This is compared to the 268 cases brought by

African-American plaintiffs in which they were

successful in 103 of those cases. See id. From

between 1982 to 2005, all §2 plaintiffs were

successful only 37.2% of the time. See Br. of Ellen

Katz and the Voting Rights [nitiative as Amicus

Curiae, Shelby County v. Holder, No. 12-96 at la

(Appendix A) (U.S. Feb. 1, 2013).

Adopting Appellants’ standard will

particularly harm Hispanics. To ensure that

Hispanics will continue to grow in_ political

representation, this Court should reject Appellants’

proposed standard and affirm the district court

below.

CONCLUSION

For the foregoing reasons, this Court should

affirm the district court below.

Respectfully submitted,

Jason Torchinsky

Counsel of Record

Shawn Toomey Sheehy

Steven P. Saxe

al. Documenting Discrimination in Voting: Judicial

Findings Under Section 2 of the Voting Rights Act

Since 1982 Ann Arbor, MI: University of Michigan

Law School at 9 (2005). At best then, Hispanics

prevailed in §2 litigation only 21 times out of 96 for

a 21.8% winning percentage.

29

Holtzman Vogel

Josefiak Torchinsky PLLC

45 North Hill Drive

Suite 100

Warrenton, VA 20186

(540) 341-8808

(540) 341-8809

Jtorchinsky@hvjt.law

No. 15-680

gms apn enema p= emg aE a in aS

In The

Supreme Court of the Anited States

GOLDEN BETHUNE-HILL, ET AL.,

Appellants,

¥.

VIRGINIA STATE BOARD

OF ELECTIONS, ET AL.,

Appellees.

On Appeal from the

United States District Court

for the Eastern District of Virginia

APPENDIX

Jason Torchinsky

Counsel of Record

Shawn Toomey Sheehy

Steven P. Saxe

Holtzman Vogel

Josefiak Torchinsky PLLC

45 North Hill Drive

Suite 100

Warrenton, VA 20186

(540) 341-8808

(540) 341-8809

Jtorchinsky@hvjt.law

Counsel for Amici Curiae

Al

Excerpt (Pages 38-39; 43) from

Virginia Redistricting:

Report on Factual and Statistical Issues Raised in

"Bill of Complaint" filed by Douglas West, et al.

With Comments on Expert Reports by Drs. David

Lublin and ‘ian Lichtman

by James W. Loewen

KEKE

(Pages 38-39)

When created, District 74 was 56.1% black in

VAP. For the first half of the 1990s no black

candidate challenged the white incumbent, Robert

Ball, perhaps because none thought he could be

dislodged. As I have suggested for other unopposed

white candidates, Ball probably was never the

candidate of choice of the African American

community. Gradually the district became blacker at

a rate of almost a percentage point per year. In the

Democratic primary of 6/13/95, Donald McEachin,

African American, narrowly defeated Ball, winning

just 51.5% of the votes cast. In 1995, District 74 was

probably 61% black in VAP. If it had been 59.7%

black in VAP, the election would have been a true

cliffhanger — so again, a district 59.7% black in VAP

can hardly be considered packed.

To be sure, in the ensuing general election,

McEachin defeated a white Republican two to one,

probably assisted by white Democrats. In 1997,

McEachin trounced a trivial white candidate in the

primary and a white independent in the general

election. Since then, he has not faced opposition.

Surely McEachin was reaping the same benefits of

Virginia incumbency as white incumbents. The

A2

question is: what happens the next time District 74

is open? I understand McEachin is not running for

this seat next time. Will white voters mobilize

behind a candidate of choice of the white

community? It is possible, if the 1995 election — the

last time the seat was open — offers any indication.

The complaint next singles out District 77,

claiming its "lines meticulously take in precincts

with heavy percentages of African American

voters, excluding white voters in surrounding

precincts," and noting that African American voters

comprise "55.9% of the district's VAP." Dr. Lichtman

likewise attacks District 77 (pages 11-13), implying

that it is packed because it is 55.9% black in VAP.

Consider the 11/5/91 general election for House

District 77, as shown in Table 7. In this context,

Willa Bazemore, black independent, lost to Thomas

Forehand, white Democrat, by 5,070 votes to 5,685.

Forehand won more than 99% of the white votes cast

for this office. With virtually no white crossover

support, Bazemore could not prevail, although the

black community voted 88% to 12% in her favor. She

lost by 600 votes, even though District 77 was 55.7%

black in VAP at the time. She would have had no

chance whatever in District 77 as redrawn by HB-2,

which reduces its proportion black to 48.3% of the

VAP. Nor would she if Dr. Lichtman's implicit

suggestions for redrawing the district to some still

lower proportion black were put into effect.

To be sure, after his confusing and narrow win

over Eileen Olds in the Democratic primary in 1993,

African American Lionell Spruill was able to win

District 77 easily, and it no longer is a seat that

whites seem to feel they can win. Spruill is reaping

the same benefits of incumbency that Donald

A3

McEachin (black) is reaping in District 74 and Frank

Hall (white) is reaping in District 69. If District 77 is

redistricted to make blacks a minority in the VAP,

however, whites and blacks may return to the 1991

pattern. This would be particularly likely when it

next becomes an open seat.

Districts 80 and 92 are the last to be described

by Dr. Lichtman. Table 4 shows that there were no

black-white primaries in these districts during the

last decade. In District 80, African American Ken

Melvin easily defeated a white independent and a

white Republican in elections analyzed in Table 6. In

District 92, African American Mary Christian easily

defeated a white independent in an election analyzed

in Table 5. These districts behave like jurisdictions

where whites do not expect to win.

District 80 was 61.1% black in VAP; the new

redistricting reduces it to 55.3%. District 92 was

66.2% black in VAP; the new redistricting reduces it

to 59.3%. Such reductions in % black may make

these districts more competitive and are hardly

evidence of packing. Moreover, when the seats

become open, the advantages of incumbency will no

longer flow to the black candidates, which will also

make the districts more competitive.

In election after election, Table 7 shows that

when white voters felt they had a chance to win,

they indulged in racial bloc voting, even in these

KK A KK

A4

OK KKK A

(Page 43)

the black VAP voting for the white candidate (1.4%)

times the % black in the VAP (x) yields the votes for

the white candidate. Setting them equal:

.292x = .147; x = .503

We conclude, for African American voters to have a

tossup chance, they must be 50.3% of the VAP at a

minimum.

Would a District 49.9% Black Be Unwinnable?

Would A District 55% Black Be Packed?

Of course, this analysis cannot be an exact

science and a point estimate like 50.3% is not

justified. We might place a band around it,

analogous to the "confidence interval" in

introductory statistics courses. But our confidence

interval does not derive solely from the statistical

process of estimating the universe of political

behavior from the known sample of past elections. In

politics, much depends on the qualifications,

character, personality, and even appearance of the

candidates, on their style and amount of

campaigning, on their stance on various issues, and

on their political alliances, wealth, and abilities to

raise funds.

I suggest that this estimate of 50.3% should be

considered a minimum for several reasons. First,

except for George Lovelace once for a partial term of

A5

office in one seat, no candidate of choice of the

African American community has won a seat in the

Virginia legislature in the last ten years, except from

districts more than 52.5% black in VAP. Second, the

districts summarized in Table 7 already have black

majorities ranging from 55% to 62% black in VAP,

yet white candidates remain competitive. Therefore

districts 55% to 62% black in VAP cannot be

considered packed.

Because these districts range from 55% to 62%

black in VAP, their black populations have already

enjoyed a considerable "warming effect," leading to

increased political mobilization. If the black

proportion in the VAP in these districts were

decreased toward 50.3%, some of this warming effect

would be lost, decreasing the ability of black voters

to elect candidates of their choice to the Virginia

legislature.

OK KR KK

A-6

Appendix B

Hispanic Members Of Congress And Hispanic Population

Percentage In Their Districts.

_ Velazquez

Name State — District | Dist. Hisp.

Pop.

1 RaulGrijalva | AZ-03 60.0% |

2 Ruben Gallego AZ — 07 62.8%

3 Lucille Roybal- CA — 40 87.6%

: ; Allard

4 Xavier Becerra CA — 34 64.2%

5 Grace CA — 32 63.4%

Napolitano

6 Devin Nunes CA — 22 46.7%

7 Raul Ruiz CA — 36 49.8%

8 Linda Sanchez | CA-38 62.5% |

9 | Loretta Sanchez CA — 46 67.3%

10 Jim Costa CA— 16 60.4%

11 | Tony Cardenas CA — 29 68.8%

12 Juan Vargas CA — 51 70.6% |

13 | Norma Torres | CA-35 71.5%

14 | David Valadao CA -—21 74.7%

15 Pete Aguilar CA - 31 51.8%

16 | Mario Diaz- FL - 25 70.9% —

___ Balart

17 Ileana Ros- FL — 27 75.4%

Lehtinen

18 | Carlos Curbelo FL — 26 69.7%

19 | Raul Labrador ID-1 10.5%

20 | Luis Gutierrez IL-4 70.1%

21 Albio Sires NJ -8 55.0%

22 | Ben Ray Lujan NM -3 40.8%

23 | Michelle Lujan NM - 1 49.4%

Grisham Pa

24 Jose Serrano NY - 15 66.0%

25 Nydia NY —7 40.5%

A-7

Appendix B

Hispanic Members Of Congress And Hispanic Population

Percentage In Their Districts.

26 | JoaquinCastro {| TX-20 67.8%

| 27 | Ruben Hinojosa TX — 15 80.6%

28 | Henry Cuellar TX-28 | 78.2%

29 Bill Flores TX —17 24.8%

30 | Filemon Vela © TX — 34 83.0%

31 | Jaime Herrera WA-3 09.4%

Beutler |

32 Alex Xavier WV -2 02.0%

Mooney Z . ;

Sources:

114th Congress, My Congressional District, 2015

American Community Survey 1-Year Estimates,

UNITED STATES CENSUS BUREAU,

http://www.census.gov/mycd/ (last visited Oct. 24,

2016).

Members, CONGRESSIONAL HISPANIC CAUCUS,

http://congressionalhispaniccaucus-

sanchez. house.gov/members (last visited Oct. 24,

2016).

Members, CONGRESSIONAL HISPANIC CONFERENCE,

https://hispanicconference-

mariodiazbalart.house.gov/membership (last visited

Oct. 24, 2016).