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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0637%3A21

## Record

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

## Text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0637%3A21. Public record. Not legal advice.