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

epee No. 15-680

‘ - — ____ — oe

BRIEFS ,

In The

Supreme Court of the GAnited States

¢

GOLDEN BETHUNE-HILL, ET AL.,

Appellants,

v.

VIRGINIA STATE BOARD OF ELECTIONS, ET AL.,

Appellees.

¢

On Appeal From The United States District Court

For The Eastern District Of Virginia

nan @®

BRIEF OF AMICI CURIAE SOUTHEASTERN LEGAL

FOUNDATION AND THE CENTER FOR EQUAL

OPPORTUNITY IN SUPPORT OF APPELLEES

-@

KIMBERLY S. HERMANN JOHN J. PARK, JR.

SOUTHEASTERN LEGAL Counsel of Record

FOUNDATION STRICKLAND BROCKINGTON

2255 Sewell Mill Rd., Ste. 320 LEWIs LLP

Marietta, Georgia 30062 1170 Peachtree St., Ste. 2200

Rocer CLEGG po a 30309

CENTER FOR ( 8) 347-

jjp@sbllaw.net

EQUAL OPPORTUNITY

7700 Leesburg Pike, Ste. 231

Falls Church, Virginia 22043

Counsel for Amici Curiae

October 20, 2016

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

Amici respectfully restate the Questions Pre-

sented by the Appellants as follows.

This case involves a challenge to the redistricting

plan for Virginia’s House of Delegates. The three-judge

court below upheld the plan, concluding that race

did not predominate over other race-neutral district-

ing principles. The Appellants contend, among other

things, that the plan architects should have engaged in

a more sophisticated analysis of electoral results that

would have produced districts with only those African-

American voters needed to produce a favorable election

outcome. Their proposed solution would effectively

trap those drafting redistricting plans between the

“competing hazards of liability,” Wygant v. Jackson Bd.

of Educ., 476 U.S. 267, 291 (1986) (O'Connor, J., concur-

ring), of compliance with the Voting Rights Act and

avoiding unconstitutional racial gerrymandering.

The Question Presented is:

Whether Section 2 of the Voting Rights Act should

be applied in a way that requires close analysis of elec-

toral results and corresponding sorting of voters even

though such an application would entail far greater ra-

cial sorting than the alternative chosen by Virginia.

ii

TABLE OF CONTENTS

Page

Gomentions Prememtedd «........<0.<ccscccscccsececee-sose-s iosibecdanias i

I io ss amnunbiannentnumiinneranduienes il

I I 2a inn nnaecincmpesianidibeninneasnalsiennda iv

et Olle NINE CII occ nscmsvesevcevecasocntancounsesipnnes 1

En TET 2

ices isos ius creecactenhendueminsesbesistassubeenguuanneee 5

ie SEIT 5 cisssctiddnncieemipicaibennihenionetecieiaghiomands 5

It. The Voting Rights Act, its history, and this

Court’s precedents support the creation of

majority-minority districts ...................00.000- 6

IIIf. Virginia created majority-minority districts

that are reasonably likely to give minority

voters an opportunity to elect the candidate

OF Fe HO vcdcticcdmtnncsincesecrenions sciakasatidanie 12

IV. In evaluating redistricting claims and pro-

posed remedies, courts should favor plans

that are less reliant on racial balancing over

those that require more of it....................66.. 13

A. Requiring a minority group to show that

it can be a majority in a single-member

district is minimally race-conscious ..... 14

B. The first Gingles criterion aids in ground-

ing representative districts where peo-

RU TD cihacssTicscnstenaseanckaussbicsiiinsds cnbcclnscesvanantaraee ae 16

i

TABLE OF CONTENTS — Continued

Page

C. The burden to show that race predomi-

nated over other traditional redistrict-

ing factors minimizes the intrusiveness

Or RR Be i i rian coeciercccnevaincesvescee 17

D. To implement relief in this and future

cases like it will require an unconsti-

tutional degree of racial microbalanc-

FE co asicebendstninddaidieiitbitbeteadtakaien biases Silncedeet 19

EK. Appellants’ proposed solution promises

nationwide chaos in redistricting ......... 22

V. Appellants improperly seek to use the Vot-

ing Rights Act for political purposes........... 23

a 25

iv

TABLE OF AUTHORITIES

Page

CASES

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

Brown v. Thomson, 462 U.S. 835 (1983)..........0..00.0.0008. 5

Chapman v. Meier, 420 U.S. 1 (1975) o.oo. ccc eee 17

Gaffney v. Cummings, 412 U.S. 735 (1973) ..0....0.0cc.ccee. 5

Georgia v. Ashcroft, 539 U.S. 461 (2003) .............ccccceeee 9

Hall v. Virginia, 385 F.3d 421 (4th Cir. 2004)............ 23

Johnson v. De Grandy, 512 U.S. 997 (1994)......... 20, 24

League of United Latin Am. Citizens (LULAC) v.

Perry, 548 U.S. 399 (2006).........0...cccceeeeeeeeeee 2, 13, 20

Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990)............ 4

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

Nixon v. Kent Cty., 76 F.3d 1381 (6th Cir. 1996)........ 10

NLRB v. Catholic Bishop of Chicago, 440 U.S.

I iichinhenssecatssnisbreedenanninelioncosicassbtievadinbewenkalisus 5,11

NW Austin Mun. Util. Dist. No. 1 v. Holder, 557

IIE uivicnsi its bsevedamianebiansineatasmbiiins es ovimweveerens 1

Regents of Univ. of Cal. v. Bakke, 438 U.S. 265

SE S6ciiccictninln Coksteetndsacntapinvescoiieaiaaendedinesexsstesnéwnisasesvevund 4

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

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

Voinovich v. Quilter, 507 U.S. 146 (19938) ........0....0... 6, 7

Vv

TABLE OF AUTHORITIES — Continued

Page

Whitcomb v. Chavis, 403 U.S. 124 (1971)...........0...... 25

Wygant v. Jackson Bd. of Educ., 476 U.S. 267

CRED weecccccsvoccnovevevesinsnsesitiiecisnne-emeinpnsiinnninennaaiannnnnnnnnEn i

CONSTITUTION

US, Comet. ammomndl. FEV q. . .s.scecsecscessevnisncecsssnaeeeeee 23

STATUTES

pit Coe & | SER Meeer re passim

GB ULB. § BDO vccwnsocicceccncsccnessicscnsssscesunakaaeeeae 3

Fannie Lou Hamer, Rosa Parks, and Coretta

Scott King Voting Rights Act Reauthorization

and Amendments Act of 2006, Pub. L. No. 109-

DOE. TD Te... SFe Ge cckvcvecssisccteunatcaeeaee 7,9

S. Rep. No. 295, 94th Cong., Ist Sess. (1975), re-

printed in 1975 U.S.C.C.A.N. 774 .............ccsscsssseeees 10

S. Rep. No. 417, 97th Cong., 2d Sess. 28 (1982),

reprinted in 1982 U.S.C.C.A.N. 177 .................cs0ee00 11

RULES

Bem. €%. FR. ST.QGa)...«. x scvececcessenscnevcceics capeseunteeeenneeneee 1

tS . fk Spent rn 1

vi

TABLE OF AUTHORITIES — Continued

OTHER AUTHORITIES

Katharine I. Butler & Richard Murray, Minority

Vote Dilution Suits and the Problem of Two

Minority Groups: Can a “Rainbow Coalition”

Claim the Protection of the Voting Rights Act?,

I ET IED os cncecncenecsnneusevessscsesees

Message from the President of the United States

Related to the Right to Vote, 89th Cong., Ist

eo cpcdisodnoarevencues

Michael A. Carvin & Louis K. Fisher, “A Legisla-

tive Task”: Why Four Types of Redistricting

Challenges Are Not, or Should Not Be, Recog-

nized by Courts, 4 Election L.J. 2 (2005)...........

Rick G. Strange, Application of Voting Rights

Act to Communities Containing Two or More

Minority Groups — When is the Whole Greater

Than the Sum of the Parts?, 20 Tex. Tech L.

TT insis cicidatiicdaciavneueconseesepeesesqseversss cers

William H. Frey, Minority Turnout Determined

the 2012 Election, Brookings Institution (May

10, 2013), https://www.brookings.edu/research/

minority-turnout-determined-the-2012-election ..

Page

1

INTEREST OF AMICI CURIAE'

Southeastern Legal Foundation (SLF), founded

in 1976, is a national non-profit, public interest law

firm and policy center that advocates constitutional

individual liberties, limited government, and free en-

terprise in the courts of law and public opinion. In par-

ticular, SLF advocates for the rigorous enforcement of

constitutional limitations on the activities of federal

and state governments. Its work extends to cases in-

volving redistricting and is reflected in SLF’s filing

of amicus curiae briefs in cases like Shelby County

v. Holder, 133 S. Ct. 2612 (2013), and NW Austin

Municipal Utility Dist. No. 1 v. Holder, 557 U.S. 193

(2009).

The Center for Equal Opportunity (CEO) is a re-

search and educational organization formed pursuant

to Section 501(c)\(3) of the Internal Revenue Code and

devoted to issues of race and ethnicity. Its fundamental

vision is straightforward: America has always been a

multiethnic and multiracial nation, and it is becoming

even more so. This makes it imperative that our na-

tional policies not divide our people according to skin

color and national origin. Rather, these policies should

emphasize and nurture the principles that unify us. E

pluribus unum ... out of many, one. CEO supports

' All parties have consented to the filing of this brief by blan-

ket consent or individual letter. See Sup. Ct. R. 37.3(a). No counsel

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

person other than amici curiae, its members, and its counsel has

made monetary contribution to the preparation or submission of

this brief. See Sup. Ct. R. 37.6.

2

color-blind public policies and seeks to block the expan-

sion of racial preferences in all areas, including voting.

It has participated as amicus curiae in past Voting

Rights Act cases, including Bartlett v. Strickland, 556

U.S. 1 (2009), and League of United Latin American

Citizens (LULAC) v. Perry, 548 U.S. 399 (2006). In ad-

dition, officials from CEO testified before Congress

several times in connection with the 2006 reauthoriza-

tion of the Voting Rights Act.

Amici have a substantial interest in limiting or

eliminating the use of race as a factor in redistricting,

and contend that the Voting Rights Act cannot and

should not be used in such a way that entails far

greater racial sorting than the creation of majority-

minority districts reasonably calculated to allow the

minority community to elect the candidate of its choice.

_— °

SUMMARY OF ARGUMENT

In Thornburg v. Gingles, 478 U.S. 30 (1976), the

Court established a test for determining when Section

2 of the Voting Rights Act, 52 U.S.C. § 10301, would call

for the creation of a majority-minority district. Subse-

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

plurality concluded that Section 2 of the Voting Rights

Act “does not mandate creating or preserving crossover

districts.” Jd. at 23. Instead, Section 2 requires the

creation of majority-minority districts when the Gin-

gles conditions are met and allows for the creation of

crossover districts. The plurality firmly grounded its

3

decision in the text of the statute, this Court’s deci-

sions, and the practical difficulties associated with the

alternative. This case provides this Court with another

opportunity to reaffirm the validity of the Bartlett plu-

rality’s reasoning.

From a practical perspective, this case presents an

issue that follows from both Gingles and Bartlett: What

is a majority-minority district in which the minority

community has a reasonable opportunity to elect the

candidate of its choice? The answer is one in which the

minority is “sufficiently large and geographically com-

pact to constitute a majority in a single-member dis-

trict.” Gingles, 478 U.S. at 50. And, the end result

according to Congress is a district in which the minor-

ity voters are able to “elect their preferred candidate of

choice.” 52 U.S.C. § 10304(d).

To mandate that those responsible for redistrict-

ing engage in a sophisticated analysis of racial voting

patterns to ensure that no more minority voters than

are absolutely needed to elect the minority commu-

nity’s preferred candidate are included in a district

would require a significant degree of racial and politi-

cal sorting. Courts are generally ill-equipped for that

inquiry. More to the point, such racial sorting is, at

best, hard to square with the Constitution. Amici urge

this Court to not encourage further racial division in

redistricting, which is all the Appellants offer it.

Moreover, Appellants would implicitly call for put-

ting African-American voters into a district because of

their race, and including white voters to balance things

4

out, again because of their race. The government

should not consider race when it is drawing voting

lines — the lines should be drawn where people live, not

based on the color of their skin. With that said, Amici

recognize that the Voting Rights Act and this Court’s

decisions appear to require that on some level, race be

considered in the redistricting process. However, it is

imperative to note that they also require that race not

be considered too much or in the wrong way. The Ap-

pellants call for just that — the consideration of race to

both an excessive extent and in the wrong way.

To the extent that the Voting Rights Act and this

Court’s precedents call for the consideration of race in

redistricting, those calls should be interpreted nar-

rowly and consistently with the Constitution. “Racial

and ethnic distinctions of any sort are inherently sus-

pect and thus call for the most exacting judicial ex-

amination .... This perception of racial and ethnic

distinctions is rooted in our Nation’s constitutional

and demographic history.” Regents of Univ. of Cal. v.

Bakke, 438 U.S. 265, 291 (1978) (opinion of Powell, J.).

In the redistricting context, the harm stems from the

fact that “[rlace-based assignments ‘embody stereo-

types that treat individuals as the product of their

race, evaluating their thoughts and efforts — their very

worth as citizens — according to a criterion barred to

the Government by history and the Constitution.’”

Miller v. Johnson, 515 U.S. 900, 912 (1995) (quoting

Metro Broad., Inc. v. FCC, 497 U.S. 547, 604 (1990)

(O’Connor, J., dissenting)).

5

In answering the question of how governments

should zig and zag in drawing voting districts, this

Court’s precedents support following a line that is sim-

ultaneously most consistent with the statutory text

and the Constitution, and least race-conscious. And,

likewise, the statutory text should be interpreted so

that it avoids raising constitutional issues, that is, in a

way that it avoids racial classifications and prefer-

ences which are presumptively unconstitutional. See,

e.g., NLRB v. Catholic Bishop of Chicago, 440 U.S. 490

(1979).

On a more mundane level, race-based redistricting

encourages racial essentialism, racial appeals, and

identity politics generally. As it does, it discourages in-

terracial coalition building and broader nonracial ap-

peals. Accordingly, when redistricting officials are

deciding when to zig and when to zag, that decision

should not turn on the skin color of the person who

lives in the house.

ARGUMENT

I. Introduction.

While congressional redistricting is tantamount to

a zero-sum exercise, legislative redistricting has tradi-

tionally been done to a higher tolerance of population

deviation among districts. See Gaffney v. Cummings,

412 US. 735, 745 (1973) (allowing “minor deviations

from mathematical equality” for state and local redis-

tricting plans); see also Brown v. Thomson, 462 U.S.

6

835, 842 (1983) (“Our decisions have established, as a

general matter, that an apportionment plan with a

maximum population deviation under 10% falls within

this category of minor deviations.”). That said, in the

most recent round of legislative redistricting, a num-

ber of states, including Virginia, found a tighter toler-

ance appropriate. Even so, the presence of a tolerance

of 2% or 5% means that population will have to be re-

allocated.

As a general matter, the reallocation of population

will drag districts away from rural areas and toward

urban and suburban areas. Further, Amici understand

that all of the majority-minority districts in Virginia

were underpopulated, some significantly. The plan’s

drafters had to try to preserve the majority-minority

districts and repopulate them by drawing from over-

populated contiguous areas of the State.

II. The Voting Rights Act, its history, and this

Court’s precedents support the creation of

majority-minority districts.

Congress enacted Section 2 of the Voting Rights

Act to guarantee that a minority group is not denied,

on account of race, color, or language minority status,

the ability “to elect its candidate of choice on an equal

basis with other voters|,]” Voinovich v. Quilter, 507 U.S.

146, 153 (1993), and to prohibit voting qualifications,

standards, practices and procedures that deny the

right to vote. See 52 U.S.C. § 10301. Specifically, the

statute bars voting qualifications, standards, practices

7

and procedures that “result{] in a denial or abridge-

ment of the right of any citizen of the United States to

vote on account of race. . . [,]” 52 U.S.C. § 10301(a) (em-

phasis added), and looks at whether a voting practice

provides a minority with “less opportunity than other

members of the electorate to . . . elect representatives

of their choice.” Jd. at § 10301(b).

To be sure, the objective of Section 2 is not to en-

sure that a candidate supported by minority voters can

be elected in a district. Nonetheless, when Congress

spoke last, it sought to protect the ability of minority

voters to “elect their preferred candidates of choice.”

See Fannie Lou Hamer, Rosa Parks, and Coretta Scott

King Voting Rights Act Reauthorization and Amend-

ments Act of 2006, Pub. L. No. 109-246, § 5(d), 120

Stat. 577 (2006). And, the way to do that is by drawing

majority-minority districts.

In Gingles, the Court considered a challenge to

a multi-member districting plan that was said to di-

lute the votes of minority voters. It held that a single-

member districting plan could be a remedy if three

conditions were met. The first focused on the size of

the minority community. The Court held that a group

too small to be a district majority “cannot maintain

that they would have been able to elect representatives

of their choice.” 478 U.S. at 50 n.17. In doing so, the

Gingles Court concluded that the opportunity “to elect”

protected by Section 2 is the ability of a protected class

to elect a representative of its choice, by “dictatfing]

electoral outcomes independently.” Voinovich, 507 U.S.

8

at 154 (emphasis added); see also Gingles, 478 U.S. at

67-68.

More specifically, the Gingles Court set forth the

following test to determine when a vote dilution claim

directed at a multi-member districting scheme may

proceed — a minority group must (1) “demonstrate that

it is sufficiently large and geographically compact to

constitute a majority in a single-member district|[,|”

(2) show that it is “politically cohesive,” and (3) estab-

lish “that the white majority votes sufficiently as a bloc

to enable it .. . to defeat the minority’s preferred can-

didate.” 478 U.S. at 50-51.

As noted, satisfaction of the Gingles test can, and

has, resulted in the drawing of majority-minority dis-

tricts. Notably, in the almost 40 years since Gingles,

the majority-minority districts that could be drawn

have been drawn. But, as this Court has explained, the

statutory text and the Constitution demand that par-

ties challenging a redistricting plan “show . . . that race

was the predominant factor motivating the legisla-

ture’s decision to place a significant number of voters

within or without a particular district.” Miller, 515 U.S.

at 916 (emphasis added).

While Section 2, as interpreted by the Gingles

Court allows for vote dilution claims under particular

circumstances, the Bartlett plurality held that Section

2 of the Voting Rights Act does not require the creation

of “crossover districts” — a district where the minority

voting population “make[s] up less than a majority of

the voting-age population ... [but] is large enough to

9

elect the candidate of its choice with help from voters

who are members of the majority and who cross over

to support the minority’s preferred candidate.” Bart-

lett, 556 U.S. at 13. Noting that it relied on the statu-

tory language, this Court’s precedents, and prudential

considerations, the plurality “decline[d] to depart from

the uniform interpretation of § 2 that has guided fed-

eral courts and state and local officials for more than

20 years.” Id. at 19.

In particular, Congress has not wavered in its pref-

erence for majority-minority districts. This can be seen

in two ways. First, when Congress amended the Voting

Rights Act in 2006, one of the changes that it made was

to reject this Court’s reasoning in Georgia v. Ashcroft,

539 U.S. 461 (2003). There, the Court held that Geor-

gia’s drawing of several crossover districts in its legis-

lative plans did not mean that those plans resulted in

retrogression in violation of Section 5. It explained that

a state could comply with Section 5 by choosing to draw

majority-minority districts or by “creat{ing] a greater

number of districts in which it is likely — although per-

haps not quite as likely as under the benchmark plan

— that minority voters will be able to elect candidates

of their choice” Jd. at 480. But, Congress thought

that the decision “significantly weakened” the Voting

Rights Act’s “effectiveness” because it “misconstrued

Congress’ original intent .. . and narrowed the protec-

tions afforded by Section 5 of such Act.” See Fannie Ma-

rie Hamer, Rose Parks, and Coretta Scott King Voting

Rights Act Reauthorization and Amendments Act of

2006, supra at § 2(b)(6).

10

Subsequently, in her Bartlett dissent, Justice

Ginsburg encouraged Congress to change the statute

to, arguably, require crossover districts. 556 U.S. at 44

(Ginsburg, J., dissenting) (“Today’s decision returns

the ball to Congress’ court. The Legislature has just

cause to clarify beyond debate the appropriate reading

of § 2.”). Congress has not acted on Justice Ginsburg’s

suggestion. In the absence of congressional action, this

Court should proceed cautiously so as not to exceed the

scope of the Voting Rights Act.

This rings especially true where neither the stat-

utory text nor the legislative history supports the con-

cept of crossover districts. As the Sixth Circuit Court

of Appeals has pointed out, the Voting Rights Act

speaks of “citizens” not “classes” of them; a violation is

established when political processes are not equally

open to the “members” of a protected class; and, one

consideration is the extent to which the “members of a

protected class” have been elected to office. Nixon v.

Kent Cty., 76 F.3d 1381, 1386-87 (6th Cir. 1996); see

also 52 U.S.C. § 10301(b). The Sixth Circuit also noted

that the only time the “aggregation of separately pro-

tected groups” is addressed in the Voting Rights Act,

such aggregation is excluded for language minorities

seeking to meet the numerical thresholds for foreign-

language ballots. See Nixon, 76 F.3d at 1387 n.7. The

committee reports for the 1975 amendments make no

reference to an “aggregation” or coalition of voters, the

“voluminous” legislative history for the 1982 amend-

ments “contains no reference to a ‘coalition’ suit,” and

there is nothing to that effect since. See S. Rep. No. 295,

11

94th Cong., Ist Sess. (1975), reprinted in 1975

U.S.C.C.A.N. 774; S. Rep. No. 417, 97th Cong., 2d Sess.

28 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 205;

Katharine I. Butler & Richard Murray, Minority Vote

Dilution Suits and the Problem of Two Minority

Groups: Can a “Rainbow Coalition” Claim the Protec-

tion of the Voting Rights Act?, 21 Pac. L.J. 619, 642

(1990) (“no reference” in “voluminous” 1982 legislative

history); Rick G. Strange, Application of Voting Rights

Act to Communities Containing Two or More Minority

Groups — When is the Whole Greater Than the Sum of

the Parts?, 20 Tex. Tech L. Rev. 95, 111-12 n.99 (1989)

(“no answer” concerning coalition suits).

While the Voting Rights Act and this Court’s deci-

sions appear to require that race be considered in the

redistricting process, in addition to those limits dis-

cussed herein, that consideration is constitutionally

limited: Race may not be considered too much or in the

wrong way. This case presents yet another iteration of

the question where the line should be drawn. This case

also presents an opportunity for this Court to answer

that question by following the line that is simultane-

ously most consistent with the statutory text, least

race-conscious, and avoids unconstitutional racial clas-

sifications and preferences. See generally, e.g., Catholic

Bishop of Chicago, 440 U.S. 490.

12

Ill. Virginia created majority-minority districts

that are reasonably likely to give minority

voters an opportunity to elect the candidate

of their choice.

The Appellants complain that the plan drafters

created majority-minority districts that have an African-

American voting-age population (BVAP) of 55% in-

stead of a majority-minority district with a BVAP of,

perhaps, 52 or 53%. They not only overlook the fact

that a district with a BVAP of 55% is one that likely

contains a working majority, they fail to explain where

those shed BVAP voters will go.

Voting-age population (VAP) does not measure

registration or participation rates. Some residents of

voting age, like felons who have been disenfranchised,

cannot register to vote, but they are included in the

VAP. Others who can register to vote choose not to, but

they too are included in the VAP. Finally, many of those

who are registered to vote choose not to vote for a

variety of reasons. The effect of these factors means

that a BVAP of 55% is, 1» fact, less secure than it

sounds.

Moreover, voter turnout is affected by factors other

than BVAP. The quality of candidates, the state of po-

litical parties, and the strength of incumbents can all

affect the willingness of voters to participate in an elec-

tion. As it is, in the 2012 presidential election, some

67% of the nation’s registered voters cast a ballot, and

the turnout rate of African-American voters exceeded

that of white voters. See William H. Frey, Minority

13

Turnout Determined the 2012 Election, Brookings In-

stitution (May 10, 2013), https://www.brookings.edu/

research/minority-turnout-determined-the-2012-election

(citing, “the historically noteworthy finding that black

turnout rates in 2012 exceeded that of whites for the

first time”). The challenge for the Appellants is to jus-

tify the assumption that the same result will hold in

future Virginia elections, which typically take place in

off-presidential years.

IV. In evaluating redistricting claims and pro-

posed remedies, courts should favor plans

that are less reliant on racial balancing over

those that require more of it.

In Bartlett, the plurality observed that inter-

preting Section 2 to require the creation of crossover

districts would give rise to “serious constitutional con-

cerns under the Equal Protection Clause.” 556 U.S. at

21. The Bartlett holding that a majority of minority

voters is required before Section 2 will require action

effectively cabins the consideration of race in the redis-

tricting process. So does assigning the burden of show-

ing that race predominated over other race-neutral

redistricting criteria to the plaintiff. This Court should

reject the Appellants’ invitation to “‘unnecessarily in-

fuse race into virtually every redistricting. ...” Jd.

(quoting LULAC, 548 U.S. at 446 (opinion of Kennedy,

J.)).

14

A. Requiring a minority group to show that

it can be a majority in a single-member

district is minimally race-conscious.

In Gingles, this Court established a common-sense,

minimally race-conscious test for drawing majority-

minority districts. In particular, under that test, a re-

viewing court looks at whether a minority group can

“demonstrate that it is sufficiently large and geograph-

ically compact to constitute a majority in a single-

member district.” 478 U.S. at 50. As the plurality

explained in Bartlett, requiring the minority group to

show that it can be a majority in a single-member dis-

trict is firmly grounded in the statutory language and

by prudential considerations. 556 U.S. at 11.

In pertinent part, Section 2 of the Voting Rights

Act focuses on voting qualifications, standards, prac-

tices, and procedures that give minorities “less oppor-

tunity than other members of the electorate to . . . elect

representatives of their choice.” 52 U.S.C. § 10301(b).

Section 2 is not offended by voting practices that give

minorities the same opportunity to participate as oth-

ers. As the plurality explained in Bartlett, the African-

American voters in North Carolina’s District 18, who

were only 39% of the voting-age population, had the

same opportunity as any other group of voters consti-

tuting 39% of the whole. 556 U.S. at 9-10. In the same

way, “Section 2 does not impose on those who draw

election districts a duty to give minority voters the

most potential, or the best potential, to elect a candi-

date by attracting [white] crossover voters.” Id. at 15.

15

Moreover, a straightforward Gingles analysis is

far easier for plan drafters and courts to apply. See id.

at 17 (“The rule draws clear lines for courts and legis-

latures alike.”). As the Bartlett plurality explained,

“[djetermining whether a § 2 claim would lie — i.e., de-

termining whether potential districts could function as

crossover districts — would place courts in the untena-

ble position of predicting many political variables and

tying them to race-based assumptions.” Jd. More par-

ticularly, courts and legislators would have to answer

questions like:

What percentage of white voters supported

minority-preferred candidates in the past?

How reliable would the crossover votes be in

future elections? What types of candidates

have white and minority voters supported to-

gether in the past and will those trends con-

tinue? Were past crossover votes based on

incumbency and did that depend on race?

What are the historical turnout rates among

white and minority voters and will they stay

the same?

Id. To answer those questions, legislatures and courts

would have to make predictive judgments based on po-

litical and racial data that may not be complete.’

The goal of the inquiry the Appellants seek would

be to put no more minority voters in a district than

needed to allow them to elect the candidate of their

? Redistricting commissions would face the same difficulties,

and there is no reason to believe a commission would do any bet-

ter than legislators or courts.

16

choice. The answer would differ for each district turn-

ing on, among other things, the degree of white cross-

over voting. And the solution for one district might not

be the solution for another.

B. The first Gingles criterion aids in ground-

ing representative districts where peo-

ple live.

In addition to its being well grounded statutorily

and prudentially, applying the first Gingles criterion

has the benefit of drawing districts where people live.

Put simply, if a geographically compact minority com-

munity is large enough to be a majority in a single-

member district, a district should be drawn around it.

And, it should make no difference whether that minor-

ity community is more than 50% African-American or

some higher percentage. If the district is drawn where

people live, that should suffice for the Voting Rights

Act.

That may be easier to do in urban areas than

in rural because population is more concentrated

there. As a result, urban districts are generally more

compact than rural ones. Whether urban or rural,

though, drawing districts where people live implicitly

recognizes communities of interest. In Miller, this

Court included “respect for political subdivisions or

communities defined by actual shared interests” in

the list of traditional race-neutral redistricting con-

siderations that should guide the process. 515 U.S.

at 916. One would think that people who live in a

17

neighborhood, community, or region share some under-

lying interests even if they disagree politically.

C. The burden to show that race predomi-

nated over other traditional redistrict-

ing factors minimizes the intrusiveness

of race in the process.

As noted above, the burden to show that race pre-

dominated over traditional redistricting principles

rests on the plaintiff. Softening that burden in any way

allows for additional federal litigation over redistrict-

ing that facilitates “a serious intrusion on the most vi-

tal of local functions.” Miller, 515 U.S. at 915. The views

the United States set forth in its amicus brief offer only

an invitation to soften the burden on redistricting

plaintiffs and shift it to redistricting defendants. That

invitation will further judicial intrusion into reappor-

tionment, which is “primarily the duty and responsi-

bility of the State.” Jd. (quoting Chapman v. Meier, 420

U.S. 1, 27 (1975)).

The United States starts well, but its suggestion

of vacatur and remand is not well-grounded. As the

United States notes, the Appellants “err insofar as they

suggest that the predominance standard is satisfied

merely by evidence that a racial target was used in

drawing the districts, without a showing that the tar-

get predominantly drove those lines.” Br. for the United

States as Amicus Curiae Supporting Vacatur in Part

and Affirmance in Part, No. 15-680, at 12 (citing Br. of

Appellants at 20-21). But, vacatur and remand are not

18

warranted. In the first place, the three-judge court

rendered its decision after a four-day bench trial that

included the consideration of oral testimony and docu-

mentary exhibits. In addition the three-judge court

took advantage of its opportunity to hear testimony to

make credibility determinations that are entitled to re-

spect on appeal. Vacatur and remand will simply grind

the dust finer.

In addition, the complaints of the United States

about the district court’s reasoning are an exercise in

nit-picking. It criticizes the district court for looking for

an “actual conflict between traditional redistricting

criteria and race.” Br. for the United States at 16 (quot-

ing J.S. App. at 30a). But, absent an actual conflict, the

likelihood that race would predominate over those

other criteria is slim to none. See id. at 18 (The claimed

error “may have limited significance.”). In addition, it

shifts the burden to the State to show that it did not

rely on racial data in an arena where race and politics

are closely aligned. Jd. at 19. That suggestion fails to

accord the State the presumption of good faith to which

it is entitled. Finally, when the United States asks the

district court to look at every population shift that ac-

companied the reapportionment, it only adds to the in-

trusiveness that will give hope to future litigants who

desire a BVAP of 51.7% instead of 52%.

The proper approach is that outlined in Miller:

The distinction between being aware of racial

considerations and being motivated by them

19

may be difficult to make. This evidentiary dif-

ficulty, together with the sensitive nature of

redistricting and the presumption of good

faith that must be accorded legislative enact-

ments, requires courts to exercise extraordi-

nary caution in adjudicating claims that a

state has drawn district lines on the basis of

race.

515 U.S. at 916 (emphasis added). Neither the Appel-

lants nor the United States offer the requisite degree

of caution. Their proposed racially-motivated intrusion

into a core state function should be rejected.

D. To implement relief in this and future

cases like it will require an unconstitu-

tional degree of racial microbalancing.

The alternative offered by the Appellants offers

none of the advantages of limited race-consciousness

and statutory consistency. To give Appellants the dis-

tricts they want would require plan drafters to engage

in precise racial and political calculations. Those cal-

culations threaten to treat white voters as pawns

for racial balancing. Drawing such districts is hard

enough for legislators to do; the task should not be un-

dertaken by courts.

Amici note that “[njothing in § 2 grants special

protection to a minority group’s right to form political

coalitions.” Bartlett, 556 U.S. at 15. Rather, minority

voters are entitled only to equal treatment, and they

“are not immune from the obligation to pull, haul and

20

trade to find common political ground.” Johnson v. De

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

To the extent that the Appellants wish to maintain

the same number of majority-minority districts that

the General Assembly created, albeit with lower BVAP

in each of them, they implicitly seek the creation of

crossover, influence, or coalition districts. But, Section

2 “does not mandate creating or preserving crossover

districts.” Bartlett, 556 U.S. at 23 (plurality op.). Like-

wise, Section 2 does not require the creation of influ-

ence districts. Jd. at 13 (citing LULAC, 548 U.S. at 445

(opinion of Kennedy, J.)). Accordingly, the Appellants’

claim lacks any statutory support.

Moreover, to engage in the sophisticated analysis

of voting results that the Appellants desire would re-

quire precise racial and political balancing. The dis-

trict would have to remain both a majority-minority

district and a performing Democratic district. Other-

wise, the district would not “perform” as hoped. Cf

Bartlett, 556 U.S. at 16 (noting how the creation of

crossover districts is in “serious tension” with the third

Gingles criterion).

Leaving aside the political calculations, the racial

ones would require adding African-Americans and ap-

proximately the same number of white people to main-

tain the total population balance. That number might

have to be adjusted upward or downward to compen-

sate for any racial difference in voting-age population.

Finally, one would have to look at the political results

21

in the voting tabulation districts to make sure that Re-

publican voters do not swamp the Democrats.

In this calculation, all that matters is the per-

centage of African-Americans in the district. The white

voters put into the district are put there because

of their race in order to balance out the political

demographics. That is just as pernicious as putting

African-Americans into a district because of their race.

And, the largely zero-sum nature of legislative redis-

tricting makes this practice all the more likely.

Finally, the calculations are time-bound because

the distribution of voters and voting behavior changes

with time. Amici note that all of the majority-minority

districts in Virginia were underpopulated, some seri-

ously, coming into the cycle. Each census shows how,

within each state and most localities, the distribution

of population has changed. At the very least, that pop-

ulation will need to be reallocated among the districts.

Furthermore, voting turnout and behavior changes

with the identity of candidates, the issues, and the for-

tunes of the parties.

Put simply, it is far more difficult, and requires far

more racial tuning, to engage in a district-by-district

analysis of racial voting patterns so that only the right

number of African-American voters is placed in the

district than it is to create a majority-minority district.

Thus far, and in Virginia, Amici have presumed that

only one large minority group is involved. If there is

more than one such minority group, to say nothing of

the nonminority group, gerrymandering will have to be

22

considered for all of them. That complicates the work

of plan drafters and reviewing courts and drives it ina

completely incoherent way.

E. Appellants’ proposed solution promises

nationwide chaos in redistricting.

In addition to entailing far more racial sorting, the

Appellants’ view promises nationwide chaos in

redistricting. As the plurality noted in Bartlett, the na-

tionwide scope of Section 2 “(hjeighten[ed its] con-

cerns” with the judicial manageability of the standard.

556 U.S. at 18. In every district in the country that

contains a minority population, those charged with

drawing representative districts in states, counties,

municipalities, and boards of education will not be able

to look just for minority communities that might con-

stitute a majority in a single-member district. They

will have to look at each minority community and con-

sider whether there are enough majority Democrats to

put together with them in the hope that a majority will

be produced.’

In any event, mandating that majority-minority

districts contain no more minority voters than neces-

sary is likely to result in far more Section 2 litigation.

A redistricting official who does not put the right

* Amici note that, in the past, the received wisdom was that

putting a significant number of minority voters, but not enough

to gather the right number of crossover voters, in a district would

be enough to win the Democratic primary and lose in the general

election.

23

number of minority voters in a district or move the un-

needed minority voters to the right district the minor-

ity community wants will be sued. And, the minority

community is not always unified in this regard; those

who disagree with the redistricting official’s decisions

will file suit, and those who agree will remain silent.

In those lawsuits, courts will have to listen to experts

tell them precisely how many minority voters are

needed in the district to elect a Democrat.

In every one of these jurisdictions, courts will have

to decide who is the kingmaker. They will get claims to

kingmaker status from both minority groups and the

majority. For a court to decide between them would en-

tail the protection of one racial group instead of the

other. That is hardly consistent with “the equal protec-

tion of the laws” to which the Constitution entitles

each of us. U.S. Const. amend. XIV.

V. Appellants improperly seek to use the Vot-

ing Rights Act for political purposes.

The Appellants seek to put the Voting Rights Act

to use in serving the institutional interests of the Dem-

ocratic Party. This Court should not “transform the Vot-

ing Rights Act from a law that removes disadvantages

based on race, into one that creates advantages for po-

litical coalitions that are not so defined.” Hall v. Vir-

ginia, 385 F.3d 421, 431 (4th Cir. 2004).

That is not just upside down, it is inconsistent

with the statute and this Court’s decisions. In perti-

nent part, a violation of Section 2 is established if the

24

minority has “less opportunity” to participate in the po-

litical process. 52 U.S.C. § 10301(b). “Granting minori-

ties a right to rearrange districts so that their political

coalition will usually win has nothing to do with equal

opportunity, but is preferential treatment afforded to

no others.” Michael A. Carvin & Louis K. Fisher, “A

Legislative Task”: Why Four Types of Redistricting

Challenges Are Not, or Should Not Be, Recognized by

Courts, 4 Election L.J. 2, 17 (2005) (citing De Grandy,

512 U.S. at 1020).

Nothing in the statute requires one race to have

a greater opportunity than others.* “Nothing in § 2

grants special protection to a minority group’s right to

form political coalitions.” Bartlett, 556 U.S. at 15. In

Bartlett, the plurality observed that the minority vot-

ers who made up 39% of the district’s voting-age popu-

lation had the same ability to control the outcome of

an election as any other group of voters “with the same

relative voting strength.” Jd. at 14.

Significantly, the Appellants seek to further their

own interests to the exclusion of the legislative major-

ity. This is particularly true in the House of Delegates,

where its plan received overwhelming support from

both parties. In any event, a political minority loses its

* Amici recognize that “[s]tates that wish to draw crossover

districts are free to do so where no other prohibition exists.” Bart-

lett, 556 U.S. at 24. They note, however, that the creation of a less

than majority-minority crossover, coalition, or influence district is

a core political decision designed to maximize Democratic elec-

toral prospects. It makes no sense whatsoever to require Republi-

cans to do the political work of Democrats.

25

majority status as the result of an election. This Court

should not reward political failure. Cf Whitcomb v.

Chavis, 403 U.S. 124, 153 (1971) (finding no vote dilu-

tion claim when a minority group “along with all other

Democrats, suffers the disaster of losing too many elec-

tions”).

Separate and apart from that, the Voting Rights

Act was meant to address race, not political party affil-

iation. President Lyndon Johnson focused on ending

practical barriers to minority voting, which he identi-

fied and divided into three categories: (1) technical

(e.g., poll taxes), (2) noncooperation, and (3) subjective

(e.g., literacy tests). See Message from the President of

the United States Related to the Right to Vote, 89th

Cong., 1st Sess. (1965). When he spoke to a special

joint-session of Congress, President Johnson observed,

“(W]e met here tonight as Americans — not as Demo-

crats or Republicans — we are met here as Americans

to solve that problem” of assuring equal rights for

African-Americans. Jd. (emphasis added).

This Court should heed President Johnson’s ex-

hortation and refrain from doing political work for one

party or the other. The political parties do not, or

should not, need this Court’s help.

+

CONCLUSION

For the reasons stated by the Appellees and this

amicus brief, this Court should affirm the decision of

26

the United States District Court for the Eastern

District of Virginia.

Respectfully submitted,

KIMBERLY S. HERMANN JOHN J. PARK, JR.

SOUTHEASTERN LEGAL Counsel of Record

FOUNDATION STRICKLAND BROCKING'TON

2255 Sewell Mill Rd., Ste. 320 LEWIs LLP

Marietta, Georgia 30062 1170 Peachtree St., Ste. 2200

ROGER CLEGG Atlanta, Georgia 30309

CENTER FOR (678) 347-2208

jjp@sbllaw.net

EQUAL OPPORTUNITY

7700 Leesburg Pike, Ste. 231

Falls Church, Virginia 22043

Counsel for Amici Curiae

October 20, 2016