virginia one 2021
TRANSCRIPT
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IN
T H E
U N IT E D S TA T ES D IS TR IC T C O U R T
FO R T H E E A S T E R N D I ST R IC T O F VIRGINIA
Ric h mo n d Div is ion
GLORIA
PERSONHUBALLA
et. al.
Plaintiffs
SEP
16 2 5
CLERK,
U.S.
DISTRICT
COURT
RICHMOND VA
Civil
A c ti on N o .
3:13 cv 678
V
JAMES B.
ALCORN
etal.
Defendants.
BRIEF
O F
ONEVIRGINIA2021
URGING
T H E
C O U R T
TO
ADOPT A
REMEDIAL
PLAN THAT ADDRESSES
TH E
SPECIFIC
DEFICIENCIES IN TH E
THIRD CONGRESSIONAL DISTRICT
IDENTIFIED
BY T H E
C O U R T
IN
TH IS
CASE
In response to the Court s Order of September3 2015 concerning the filing of briefs and
remedial
plans in this
case,
OneVirginia2021,
Virginians
forFair
Redistricting, submits
thisbrief
urging the Special Master to
recommend
andthe Court to adopt a remedial planthat addresses all
ofthe
deficiencies
inthe
Third Congressional District identified
inthe
opinion
ofthe
Court.
These
deficiencies, aside from thepredominance of
race,
include a highly non-compact district,
theabsence of
true
contiguity, and numerous divided political subdivisions and
voting
precincts
that were
split
solely to create anunconstitutionally gerrymandered congressional district.
IN T RO D U T IO N
OneVirginia2021 Virginians for Fair Redistricting is a corporation formed underthe
laws oftheCommonwealth of Virginia
and
granted exempt status under Sections 501 c 3 and
501 c 4
ofthe
Intemal Revenue
Code.
OneVirginia2021
was
organized
to initiate a
comprehensive effort to remove gerrymandering
from
the
redistricting
process in
Virginia,
by
seeking an
amendment
totheConstitution ofVirginia establishing an impartial Redistricting
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Commission
ndependent
ofthe
General
Assembly
- to draw
legislative
and
congressional
district
lines.
Thecommission
would
be
required
touse specific
objective
and
well-defined
redistricting criteria inperforming the redistricting fimction to invite
public
participation inthe
process and to be fully transparent.
This
case
presents an
important
opportunity to
demonstrate
the
need
fora fairprocess and
the use of enforceable well-defined redistricting
criteria
in creating legislative and congressional
districts.
The Constitution of
Virginia establishes mandatory
redistricting criteria tobe
applied
by
redistricting
authorities. Every electoral district shall becomposed ofcontiguous and
compact territory
and
shall
beso
constituted
asto
give
as
nearly
asis
practicable representation
in proportion to the population of the district. Va. Const. Art. II, Sec.6. As this Court
recognized in
drawing
theThird Congressional District
aside from
population theGeneral
Assembly made no effort to comply with these mandated redistricting criteria. Any
remedial
plan accordingly
should
be tailored
specifically
to
address these
glaring deficiencies.
This Court isnotwithout guidance in ascertaining precise
standards
andcriteria to apply
in the remedial process now before the Court. There is a model available that would address all
of the redistricting
deficiencies
at issue in this
proceeding.
In the 2015 session of the Virginia
General Assembly Senator
John
Watkins introduced SB 840 a
bill amending
the
Code
of
Virginia to set forthclearand specific redistricting criteria derived from the constitution and
jurisprudence oftheCommonwealth. Hisbillpassed theSenate unanimously ona vote of 38-0
but
was
leftina
House
subcommittee
ona
4-3
vote
without consideration bythe
full
committee.
A copyof SB840 is attached to thisbriefas anExhibitA. (Thebill alsois available online at:
http://lis.virginia.gov/cgi-bin/legp6Q4.exe? 5 l ful SB84 pdfV
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Among the specific, well-defined criteria in the Watkins bill to direct the districting
process were the following: 1) Existing political subdivision boundaries and voting precincts
should be respected to the maximum extent possible. a departure fi om existing political
subdivision boundaries is necessary in order to comply with other districting criteria, then district
lines should be drawn using clearly observable natural or man-made physical boundaries; 2)
legislative and congressional districts should contain substantiallyequal population in
accordance withthe legal standards established by the courts; 3) legislative and congressional
districtsmust comply withthe lawsrequiring racial and ethnic fairness, including following the
proper procedures for ensuring that minoritiescan elect candidates
o
their choice; 4) every
legislative and congressional district should be composed of contiguous territory. A district is
contiguous
if it is possible to travel
from
onepoint in the district to anyotherpointwithout
crossing the boundary
o
the district. Districts divided by waterare contiguous
i
a common
means of transport, suchas a bridge or ferry connects the two partsof the district or, i the water
wereto be removed, the land on one side of the district wouldbe adjacent to the landon the
other
side
ofthe district i.e. eliminating water contiguity
upriver
or downstream; 5)every
legislative and
congressional
district should be composed of compact territory. Districts should
not be oddlyshaped or have irregular or contorted boundaries, unless necessary because the
district
adheres to
political
subdivision lines. Fingers
tendrils
or land bridges extending
from
a
district
core
should beavoided aswell asthinandelongated districts anddistricts withmultiple
core populations
connected
bythin
strips
oflandor
water.
Districts
should
be
drawn
using one
or
more
standard
numerical measures
of
individual
and
average
district
compactness
to
provide
anobjective
assessment
of a districting plan s
compactness both statewide
anddistrict-by-
district; and 6)political dataand election
results
should notbe
considered
in
creating
districting
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maps, unless an analysis of election results is necessary to determine if racial or ethnicminorities
canelectcandidates of theirchoice.
These
arethe
criteria
that, as a practicalmatter,
should
guide
the
Special Master and
the
Court
in
adopting
a
remedial
redistricting
plan
to address the
unconstitutional racial gerrymandering in the ThirdCongressional District.
L E G L ST IVD RDS G O V E R N I N G
T H E
C O U RT S R O L E
When
thejudicial
branch
performs
redistricting,
it lacks thepolitical authority ofthe
legislativeand executivebranches and, therefore,must act in a restrainedand deliberative
manner.
Connor
v. Finch.
431 U.S.
407,415 1977).
However, when
the
legislature fails
topass
a
new
redistricting
plan,
andtheoldplanis no
longer
constitutional, thecourt s
powers
are
broad. O Sullivanv. Brier. 540 F.Supp. 1200,1202-03 D.Kan. 1982). And
while [t]he
remedial powers ofanequity court must beadequate tothe task. . . they
are
notunlimited.
Upham Seamon. 456 U.S. 37,43 1982). When adherence to state policies does notdetract
from the
requirements
ofthe
federal
Constitution, the
district court should honor state
policies in
the
context
of
congressional redistricting.
White v.Weiser. 412 U.S. 783,795 1973). In
addition,
the
court
should
consider
remedies
required
bythe
nature and
scope oftheviolation.
White Weiser.
supra at 793. In this
case,
thenature and
scope
of
the
violation require the
Court
to
address the extreme
deviations in compactness, contiguity
and
political subdivision
splits thatrender theThirdCongressional District unconstitutional. Tothisend,the
Court
should
perform its task utilizing politically neutral and
well-defined
redistricting principles, derived
from
state
and federal
law, topromote public confidence
and
the perception of
fairness
in
the
remedial process. The
redistricting
standards
and criteria set forth in SB 840, theWatkins bill,
clearly provide the well-settled state and federal standards that this Court should honor in order
to accomplish
the task
at hand.
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RGUM NT
TheCourt s opinion in thiscase filedonOctober 7, 2014clearlyidentifies the significant
deficiencies
inthe
Third
Congressional
District
that
should
be
corrected
inthe
remedial plan.
ompactness
Asnoted above,compactness is a districtingcriteria specificallymandatedby the
Virginia Constitution. See,Va. Const. Art. II, Sec. 6. This Court has stated that the Third
Congressional District is
the
leastcompact andmostbizarrely shaped districtin the2012plan.
Page V Virginia
State
Boardof Elections. C.A. No. 3:13cv678 (October 7,
2014)
Slip op.at
36).
Thelegislature didnot examine compactness scoresin creating thedistrict, anda visual test
shows itis well deserving the
kind
ofdescriptive adjectives. . . thathave traditionally
been
used
to
describe acknowledged gerrymanders. Page.
Slipop. at 24. It
crosses
the
James River
from the City ofRichmond and Charles City County into Prince George County with an
appendage jutting outwest
from
thedistrict core to capture theCity ofPetersburg.
The
district
then wanders eastward,
loosely
connected by the James River, id,to pick up isolated and
unconnected portions ofNewport News, theCityofHampton andthe CityofNorfolk. In sum,
the
district
fails to
meet
any
reasonable standard
of
compactness, using
either a
basic eyeball
testorwell-accepted mathematical
measures,
andtheremedial plan
adopted
bythisCourt
should
correct this violation ofa constitutionallymandated districting
criteria
inVirginia.
ontiguitv
Like compactness, contiguity
of legislative and
congressional
districts is constitutionally
required in the Commonwealth
of
Virginia. ^ Va. Const.Art.
IT
Sec. 6. The Third
Congressional
District
does notmeet any
reasonable
standard of
traditional contiguity,
and
even
violates allowances
for
water
contiguity
that have been recognized
bytheSupreme
Court
of
Virginia.
See, e.g., Wilkins
v.West. 571 S.E.2d 100 2002). Inthis
case,
the legislature used
5
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water contiguityas a means to bypasswhite commimities and connectpredominantlyAMcan-
Americanpopulationsin areas suchasNorfolk,NewportNews and Hampton. Page. Slip op. at
26. Contrary to thisCourt s conclusion in Pagethat the thirddistrict was legallycontiguous,
Page. Slip op. at 25, suchpurportedwater contiguity,createdby running district linesup along a
river bankor downstream, to connectseparate and distinctsections of landon the sameside of
the
water,
isnotan
accepted
partof
Virginia
jurisprudence. In
Wilkins
v.West
supra,
the
Supreme
Court
ofVirginia defined the constitutional parameters of contiguity by landandby
waterin Virginia. Clearly, a district thatcontained twosections completely severed by another
land mass would
notmeetthis
constitutional
requirement. Moreover,
noone
disputes
thatthe
geography and population
of
this Commonwealth necessitate that some electoral districts include
water,
andthatlandmasses separated bywatermay nevertheless satisfy the contiguity
requirement in certain
circumstances.
Wilkins 571
S.E.2d
at
109 emphasis
added). Inthis
case,
the
precincts
inNewport News and
Hampton
arenot separated bywater.
Rather, they
are
completely severed
by
another land
mass. The
Third Congressional District
isnot
contiguous,
andthisCourt s
remedial
plan
should
correct this
deficiency.
olit ical ubdivision and
recinct
plits
Asthis
Court
pointed outin its earlier opinion, the
Third
Congressional District split
more
local
political subdivisions thananyothercongressional district. Ninecitiesand counties
weredivided, andthis contributed to themajority of splitsin neighboring congressional
districts.
Page. Slip
op.
at
26.
It
also
split
more voting precincts than any
other
congressional
district. This
Court
referred specifically to theplaintiffs alternative plan
that,
unlike the2012
Plan,
keeps the
cities
of
Newport
News, Hampton,
and
Norfolk
intact.
This is a particularly
important accomplishment
because
it reflects the fulfillment ofa strong public sentiment, as
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expressed during the 2010 redistricting forums, against splitting localities, and in favor
of
keeping citieslike
Hampton
andNorfolk intact. Id. at 29. It alsoshouldbenotedthatsplit
precinctscomplicatethe electionprocess and imposehardshipsand substantialadditionalcosts
on localelection officials. ThisCourt's remedial planshould establish a ThirdCongressional
District thatminimizes tothe
greatest
extent
possible
such
political boundary andprecinct splits,
both in the ThirdDistrictand its neighboringcongressional districts.
ompliance
wi th the
Voting
Right s c t
In holdingthat the Third Congressional Districtwas a racial gerrymander, this Court
stated
thatthe
2012
congressional
redistricting plan
was
not
informed
bya
racial bloc
voting
or
other, similar type of analysis. Id.at
10.
Instead, theGeneral Assembly adopted a racial
threshold, concluding thatall majority-minority districts should
have
aminimum black voting
age
population
(VAP) of 55 . In considering a remedial plan, it is
anticipated
thattheCourt
will
examine
proposed alternative plans todetermine whether racial
bloc
voting analyses
have
been provided, andwhether theproposed district will
allow
minority voters to elect candidates of
their
choice. The Court also may
wishto
consider
the
Third Congressional
District
redraw
that
was implemented in 1998, after this Court first struck down the third district as a racial
gerrymander inMoon v. Meadows. 952F. Supp. 1141 (E.D.Va. 1997). Thenewdistrict enacted
following
the decision inMoon hada black
VAP
of 50.4 . In
1998,
the incumbent
Congressman in the thirddistrictwon re-election with 75.97 of the vote. Sincethat time, the
incumbent has won every contested election with at least 68.7
of
the vote. These results show
there isno need for asuper-majority
minority
district in
order
toprotect
the rights
of
minority
voters
inthe
Third
Congressional District.
TheCourt's
remedial
plan
accordingly should
be
tailored to reflect the actual performanceof the district.
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ON LUS ON
Forthe reasons statedabove,OneVirginia2021 respectfullysubmits that this Court
should 1) adoptobjective, well-defined districting criteria, suchas that set forth in SB840, the
Watkins
bill,in
order
to
guide
the
Special
Master andthis
Court
in
approving
a
remedial
redistricting
plan
and 2) thattheSpecial Master recommend andtheCourt
adopt
a remedial
planthat
corrects
allofthe
deficiencies
inthe
Third Congressional
District identified in the
opinion of the Court.
Dated: September
16 2015
Respe^j^ully submitted,
ON
Gregory E. Lucyk VSB 19754)^
300 Seneca Road
Richmond VA 23226
Phone: 804) 920-7031
Emai l: gglucv@comcast ne t
Counsel
fo r
OneVirginia2021
o u n s l
wishes
to
express
his gratitude
and
appreciation toour Legal Intern
Emily Wagman
L
at
William
and Mary Law School for her outstanding research drafting
and
editing
assistance in the preparation
of
this brief
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CE RT I FI CA T E
SERVICE
I hereby certify thaton
September
16 2015 1filed an original andonecopy ofthis
document with the Clerk
of
the
Court andmailed
a^|w
by ^iS^Sai^Tto the foljpwing counsel:
Gregory E. Lucyk
Mike
Melis
Office
of
theAttorney General
9 Eas t Main
Street
Richmond VA 23219
Attorneysfor Defendants in their
in their official capacities
FrederickW. Chockley III
Jennifer
Marie
Walrath
Baker
Hostetler
LLP
1 5
Connecticut
Ave NW
Suite 11
Washington DC 20036
Attorneysfor Movants Robert
B. Bell ChristopherMarston
and William Janis
John K Roche
Marc Er ik
Elias
John Devaney
Perkins
Coie
LLP
700
13 ^ St.
NW, Suite 600
Washington DC 20005-3960
Attorneys
for
Plaintiffs
Jonathan Andrew Berry
John Mat thew Gore
Michael Anthony Garvin
Jones Day
51 Louisiana A ve NW
Washington DC 20001
Attorneys
fo r
Intervenor-Defendant
VirginiaRepresentatives
Cullen Dennis Seltzer
Sands Ander son PC
1111 East
MainStreet
24
Floor
Richmond VA 23218
Attorneys
for
InterestedParties Clerk
of
the
VirginiaSenate Clerk ofthe VirginiaHouse
andDivision
of
Legislative Services
Kevin J Hamilton
Perkins Coie
LLP
1201 Third Avenue Ste
49
Seattle
WA
98101
Attorneys
for
Plaintiffs
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