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

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## Record

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

## Text

epee No. 15-680
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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
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0637%3A23. Public record. Not legal advice.