Virginia One 2021

7/23/2019 Virginia One 2021

1/9

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

Case 3:13-cv-00678-REP-LO-AD Document 214 Filed 09/16/15 Page 1 of 9 PageID# 5062


2/9

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



3/9

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



4/9

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.



5/9

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



6/9

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



7/9

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.



8/9

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



9/9

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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