Alabama Legislative Black Caucus, et al v. The State of Alabama, et al (PANEL)(LEAD)

Filing 317

THOMPSON, District Judge, concurring in part and dissenting in part: re 316 Memorandum Opinion and Order; respectfully dissenting from the majority's conclusion that an additional 12 districts (Senate Districts 23 and 24 and House Districts 52, 55, 56, 57, 60, 67, 68, 69, 83, and 97) are constitutional, as further set out. Signed by Honorable Judge Myron H. Thompson on 1/20/17. (djy, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION ALABAMA LEGISLATIVE BLACK CAUCUS, et al. Plaintiffs, v. THE STATE OF ALABAMA, et al. Defendants. ALABAMA DEMOCRATIC CONFERENCE, et al. Plaintiffs, v. THE STATE OF ALABAMA, et al. Defendants. THOMPSON, District dissenting in part: ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Judge, CIVIL ACTION NO. 2:12cv691 (Three-Judge Court) (WO) CIVIL ACTION NO. 2:12cv1081 (Three-Judge Court) (WO) concurring in part and I concur with the majority that 12 of the districts at issue do not pass constitutional muster: Senate Districts 20, 26, and 28 and House Districts 32, 53, 54, 70, 71, 77, 82, 85, and 99. I also concur that 12 districts are constitutional: Senate Districts 18, 19, and 33 and House Districts 19, 58, 59, 72, 76, 78, 84, 98, and 103. However, respectfully that an for the dissent additional reasons from 12 the given majority’s districts are below, I conclusion constitutional: Senate Districts 23 and 24 and House Districts 52, 55, 56, 57, 60, 67, 68, 69, 83, and 97. Two of the districts for which the majority concluded that race predominated, SD 23 and HD 68, cannot survive strict scrutiny. In the other ten districts, for which the majority held that race did not predominate, I conclude that race predominated and they cannot survive strict scrutiny. 2 In this case, involving the constitutionality of Alabama’s 2012 House and Senate plans, the Supreme Court vacated the judgment previously adopted by the majority and remanded it back to our three-judge panel to consider individual racial-gerrymandering districts for the with purposes plaintiffs’ equal-protection claim. respect of to resolving Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1274 (2015). That opinion provided us guidance about the importance of direct evidence demonstrating the State’s policy of using “mechanical racial targets” and a roadmap assessing the districts challenged by plaintiffs. at 1267, 1271. predominance, the Specifically, Court provided a as to roadmap for Id. racial for our district-specific analysis, instructing us to examine evidence indicating the State’s policy of achieving racial targets had an impact on “at least some of [a district’s] boundaries,” such as through the district’s shape, the racial composition of the population added 3 to the district, or the preservation of the percentage of the population that was black. Id. at 1271. The Court also directed our attention to split precincts, especially where the population was “clearly divided on racial lines.” certain Id. factors race-neutral including Finally, the Court instructed that could factors the State’s not be considered overcoming the traditional use equal-population of race, objective and factors “not mentioned in the legislative redistricting guidelines.” Id. at 1271-72. To survive strict scrutiny, the Court instructed that the State must have a “‘strong basis in evidence’ in support (race-based) choice that it has made.” of the Id. at 1274. The Court further concluded that the State “expressly adopted and applied a policy of prioritizing mechanical racial targets above (save one-person, all other one-vote),” districting id. at criteria 1267, and described that approach as asking “the wrong question with respect to narrow tailoring.” 4 Id. at 1274. Because the majority does not adhere to all of the Court’s guidance in its analysis of the strict-scrutiny and racial-predominance prongs of plaintiffs’ equal-protection claim, I cannot accept the majority’s analysis. Our disagreement is not merely a question of evidentiary disputes; the majority commits clear legal errors in its analysis of both the two districts where it found districts strict where scrutiny I satisfied disagree with and the the ten majority’s conclusions as to racial predominance. I. Two Additional Districts Because I partially agree with the majority as to SD 23 and HD 68, I will begin with them. The majority correctly concludes that race predominates with respect to these two districts. But I do not agree that the State has met its burden to demonstrate that its use of race survives strict scrutiny. 5 SD 23 and HD 68 are drawn in the largely rural West Black Belt region of Alabama. Each district consists of a majority-black population that was represented by a black legislator during redistricting. In each, the State hit its racial target--based on preserving the same percentage of the black percentage when applying the 2010 census to the 2001 district lines--almost to a tee: in SD 23, the drafters took a district that had been 64.76 % black under the old lines and drew it with a 64.84 % black population in the new plan; in HD 68, the drafters took a district that black and left it 64.56 % black. had been 62.55 % The State met its targets despite adding significant new population to each district to achieve its equal-population objective. For evidentiary support on the strict-scrutiny prong, the majority relies principally on comments made by incumbent legislators during public hearings in the redistricting process. But 6 these comments are inadequate to provide a strong basis in evidence. the first incumbent comment, for HD Representative 68, while Thomas expressing In Jackson, concern about packing too many blacks into majority-black districts, stated that instead Alabama’s majority-black districts “could be black. sixty-two percent or sixty-five percent” Reapportionment Comm. Oct. 13, 2011 Hrg. Tr. (doc. no. 30-23) at 8 (emphasis added). And that is it: Jackson offered no demographic support whatsoever for his comment. A few days later, Senator Henry Sanders, incumbent for SD 23, while expressing concern about drawing majority-black districts with too few blacks, suggested they “ought not to be less than 62 percent” black. Reapportionment Comm. Oct. 18, 2011 Hrg. Tr. (doc. no. 30-28) at 6 (emphasis added). The only his demographic support Sanders offered for comment is this: “Sometimes a lot of people don’t vote. Sometimes a lot of people can’t vote. ... Sometimes a lot of folks are discouraged 7 for one reason or another.” Id. unequivocally (emphasis directed added). his Moreover, comments at Sanders “majority African-American districts,” id. (emphasis added); that is, in the plural and thus generally. As I generic will and comments explain later conclusory provide and “could inadequate in be” detail, and these “sometimes” evidentiary support for government action based on race under strict scrutiny. Strict scrutiny declaring a is designed State’s use of to ensure race that, before constitutional, the court must be reasonably confident that, as I believe the United States recently filed “relied on aptly with put the Supreme information about characteristics--localized knowledge of stereotypes.” actual it in an amicus Court, the brief State district-specific assessments constituents, drawn from rather than Brief for United States as Amicus Curiae at 32, Bethune-Hill v. Va. State Bd. of Elections (U.S. 2016) (No. 15-680), 2016 WL 4916822, at *32. 8 Because the record is insufficient for this court to determine, one way or the other, that Alabama did not rely on stereotypes districts about cannot black voting survive behavior, the two scrutiny and the strict majority’s conclusion otherwise is clearly erroneous. A. Strict-Scrutiny Standard Where a court concludes that race predominated in the design determine of if a district, that the district court can must further survive strict scrutiny--that is, “whether the [district] is narrowly tailored to interest.” (1993). claims further a compelling governmental Shaw v. Reno (“Shaw I”), 509 U.S. 630, 658 Shaw in I the strict-scrutiny adopted, for redistricting prongs from racial-gerrymandering context, ordinary the two equal-protection analysis: first, “any racial classification ‘must be justified by a compelling governmental interest,’” and, second, “the means chosen by the State to effectuate 9 its purpose must be ‘narrowly tailored to the achievement of that goal.’” Wygant v. Jackson Board of Education, 476 U.S. 267, 274 (1986) (plurality opinion) (citations omitted). As to the first prong, the parties do not dispute that the State held a compelling interest in compliance with a correct interpretation of Rights Act, 42 U.S.C. § 1973c. centers on the second § 5 of the Voting Accordingly, my review prong--the narrow-tailoring requirement. To satisfy the narrow-tailoring prong here, the State must show that it had a strong basis in evidence for the way it used race in the design of a district. Ala. Legislative Elaborating on Black the Caucus, standard, 135 the S. Ct. at Supreme 1274. Court explained that the State “may have a strong basis in evidence to use racial classifications to comply with a statute when [it] ha[s] good reasons to believe such use is required, even if a court does not find that the 10 actions were necessary for statutory compliance.” Id. (quoting Brief for the United States as Amicus Curiae 29). Put differently, while the State need not show that a compelling interest actually required it to use racial classifications, the State must show a strong basis in evidence for believing that the racial classification it used was required. In adopting the strong-basis-in-evidence standard to satisfy the narrow-tailoring prong, the Supreme Court directed us to the standard for strict scrutiny that has been applied in both the voting-rights and racial-preference contexts. See Ala. Legislative Black Caucus, 135 S. Ct. at 1274 (“[W]e agree with the United States that a court's analysis of the narrow tailoring requirement insists only that the legislature have a ‘strong basis in evidence’ in support of the (race-based) choice that it has made.” (citing Brief for United States as Amicus Curiae 29 and Ricci v. DeStefano, 557 U.S. 557, 585 (2009)). 11 In Ricci, an affirmative-action case that confronted a race-discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the strict Supreme scrutiny, Court the concluded government that, needed to more survive than a “good-faith belief” that its racial preferences were necessary for 581-82. Even statutory though compliance. the 557 government U.S. reached at its decision on the recommendation of an industry expert, that expert’s “few stray (and contradictory) ... statements” could not qualify as a strong basis in evidence, especially because he had not “studied the [issue] at length or in detail” and had not seen relevant data. Id. at 591 (quotations and internal alterations omitted). Beyond standard the in Court’s Ricci, recent the application of the strong-basis-in-evidence standard originally derived from equal-protection cases in the racial-preference context. 12 The plurality opinion in Wygant explained that a governmental actor using racial must have classifications “a strong for basis a in remedial evidence purpose for its conclusion that remedial action was necessary,” which, in turn, required that government actors proceed with “extraordinary care” and assemble “convincing evidence” before taking such action. 476 U.S. at 277. The same standard was applied in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), which determined that a race-based measure, supported by the testimony of geographically government officials specific nor that was neither accompanied by an explanation of the basis of their opinions, could not pass strict conclusionary” the rigor evidence. The scrutiny, and because “generalized necessary to such “highly assertion[s]” establish a strong lacked basis in Id. at 500. majority asserts that the strict-scrutiny standard developed in racial preference cases has no 13 application Supreme to this Court’s context. decision But in well before case, this the the strong-basis-in-evidence standard was imported into the racial-gerrymandering context. 656 (citing and applying See Shaw I, 509 U.S. at strong-basis-in-evidence standard from Wygant and Croson). Similarly, in Bush v. Vera, Justice O’Connor, who authored the plurality opinion, explained in a separate concurrence that a State’s “‘strong basis in evidence’ need not take any particular form,” but made clear that it “[could not] simply rely on generalized assumptions” about voting behavior, such as voting.” 517 U.S. concurring). on a 952, prevalence 994 of (1996) racial (O’Connor, bloc J., She concluded that the State’s reliance recent extensive, “the federal court geographically ruling specific that factual had made findings about voting behavior and was corroborated by expert 14 testimony provided a strong basis in evidence. Id. at 994-95 (O’Connor, J., concurring).1 In Shaw v. Hunt (“Shaw II”), the Supreme Court concluded that the State’s evidentiary burden on strict scrutiny can be met only by using evidence it actually considered at the time of redistricting; after-the-fact justification does not count. 517 U.S. 899, 908 n.4 (1996) (stating that strong-basis-in-evidence standard requires interrogation purpose,” not motivated’” State’s it). proffer of a “speculation The of Court legislature’s about what refused historical and to “actual ‘may credit social have the science reports, generated only after the challenged districts had been drawn, to prove that it had a strong basis in 1. Justice O’Connor and the other members of the plurality ultimately concluded that the new majority-black district was not narrowly tailored because it was not compact and was oddly shaped. Bush, 517 U.S. at 979, 995. 15 evidence for districts. its creation of two majority-black Id. at 910. Shaw II also required a district at issue to be designed in a manner tailored to the evidence justifying it. The Supreme Court held that, although North had Carolina evidence to draw a established remedial a strong district basis based on in its failure to give effect to minority voting strength in one region of the State, that evidence did not establish a broad license to draw a remedial district elsewhere in the State. Id. at 917. The majority observes that strict scrutiny does not require that a State engaged in redistricting must precisely guess what the Voting Rights Act demands; the State is entitled to “a Bush, 517 U.S. at 977. limited degree I fully agree. of leeway.” But here the question put is simply whether the record is adequate to determine race-conscious that the decision State based 16 has on not made stereotypes its about black voting decision behavior on and instead localized, has based its district-specific characteristics. Stated simply, while the strong-basis-in-evidence standard adopted by the Supreme Court in this case, Ala. Legislative Black Caucus, 135 S. Ct. at 1274, “need not take any particular form,” Bush, 517 U.S. at 994 (O’Connor, J., concurring), it does require the State to point to concrete and specific evidence, which it actually relied upon before reaching its decision and which is sufficient for the court to interrogate the basis race-based for the decision State’s must approach. be narrowly Further, tailored the to address the harm to citizens in the district at issue, and it must be fully supported by the evidence. State cannot consistent establish with a strong these basis standards, in If the evidence redistricting undertaken with race as the predominant consideration 17 is not narrowly tailored and cannot survive strict scrutiny. B. SD 23 and HD 68 The majority’s strict-scrutiny conclusion for SD 23 and HD 68 rested primarily on the suggestions made by the districts’ Jackson and incumbent Senator legislators, Sanders, Representative which, the majority believes, gave the State a strong basis in evidence to draw majority-black districts 62 % to 65 % black population. within the range of a The majority correctly recognizes the legislators’ comments cannot provide a strong basis in evidence for majority-black districts across the Nonetheless, entire the State, as majority, the State relying had on argued. those same legislators’ suggestions, resuscitated the legislators’ two districts, transforming the State’s statewide argument into one specifically about SD 23 and HD 68 18 solely by virtue of the fact that Jackson and Sanders served as incumbents in those districts. For the reasons discussed below, this approach is profoundly which mistaken. the majority “extraordinary analysis. face, relies care” betray precise percentage percent legislators’ do demanded of or that even in the population sixty-five percent” exhibit on the strict-scrutiny Instead, on their speakers themselves the appropriate recommendations: black comments not Wygant, 476 U.S. at 277. they lacked The “could be sixty-two black, according to Representative Jackson, the incumbent for HD 68; the percentage in all majority-black districts “ought not to be less Sanders, the than 62 percent,” incumbent for SD according 23. to Senator Reapportionment Comm. Oct. 13, 2011 Hrg. Tr. (doc. no. 30-23) at 8; Reapportionment Comm. Oct. 18, 2011 Hrg. Tr. (doc. no. 30-28) at 6 (emphases added). all majority-black districts 19 But Sanders referred to in Alabama--so we know that his recommendation was not tailored for SD 23 and HD 68. Jackson’s suggested “could be” percentages provide neither a precise suggestion nor a reason to think his passing comment was tailored to the districts at issue. Sanders’s 62 % minimum sets a bright-line rule for all majority-black districts based on things that happen, by his own words, only “sometimes”: he went on to explain that, “Sometimes a lot of people don’t vote. Sometimes a lot of people can’t vote. ... Sometimes a lot of folks are discouraged for one reason or another.” In the districts where, “sometimes,” a high proportion of the black population exercises its right to approach vote, to population. one adopt would a Sanders expect lower did not a more percentage tell us tailored of whether black those conditions exist in his district, and the record does not disclose it. “could be” “sometimes”; What Jackson and Sanders told us relevant but to without the districts district-specific 20 at issue evidence, the record gives us no way to know. These comments do not provide a strong basis in evidence sufficient to satisfy strict scrutiny. i. Background In October 2011, before draft redistricting maps were available, the Permanent Legislative Committee on Reapportionment held 21 public hearings across the State to solicit public input. At one such hearing, on October Representative 13 in Thomasville, Jackson cautioned against packing: “I know they’ve compacted those districts, put the minorities in one district they could put them in, but we didn’t feel that was fair.” Reapportionment Comm. Oct. 13, 2011 Hrg. Tr. (doc. no. 30-23) at 8. apparently derived redistricting Jackson’s concern about packing from process school-board districts. the for recently completed Congressional and Suggesting that the drafters had not taken into account statements he had made at 21 public hearings during that process, Jackson asked if the public solicit hearings input: “[I]s reflected this a genuine something that attempt we’re to just going around getting people to come out and say you’re doing this to make us feel good? Because when it’s to come for these -- the vote for this stuff ... you-all had your minds all made up and you did what you was going to do.” Id. at 7-8. Jackson then urged the drafters not to pack too many black people into a single district: “REPRESENTATIVE JACKSON: ... You know, and having a minority district over there, it’s got to be ninety-nine percent minority. “HEARING OFFICER: Right. “REPRESENTATIVE JACKSON: It could be sixty-two percent or sixty-five percent. That’s what we’re trying to tell our good friends before on that. Nobody listens too well to us.” Id. at 8 (emphasis added). 22 At another public hearing on October 18, 2011 in Selma, Senator Sanders urged the drafters not to place too few black people into majority-black districts: “One of many concerns is we are not to have any less African-American--the majority African-American districts than you have, and that those districts ought not be less than 62 percent. And I just want to say why 62 percent, ought not to be less than 62 percent. Many times a population of a district is not reflective of the voters at all in that district. Sometimes a lot of people don’t vote. Sometimes a lot of people can’t vote. They might be in prison or other kinds of institutions. Sometimes a lot of folks are discouraged for one reason or another. So I would hope that 62 percent is a minimal for the majority African-American district.” Reapportionment Comm. Oct. 18, 2011 Hrg. Tr. (doc. no. 30-28) at expressed tactic 6 (emphasis concern that added). about involves In cracking, spreading the essence, a Sanders gerrymandering population of a voting bloc among many districts to deny its members a sufficiently large population to elect the candidate of 23 their choice in any particular district. Sanders also expressed a procedural concern, requesting a further hearing after the drafters had proposed a concrete redistricting plan because he did not believe a hearing absent one held much value: “Whenever you are talking in the abstract, it really doesn’t mean anything. just doesn’t mean anything.” a draft senators, redistricting Sanders Id. plan proposed In June 2012, after had an It been shared alternative plan with that included a 57.75 % black population in his district, SD 23. Sanders alternative Senate plan Plan, suggests C-47, he did at 5. not Sanders’s believe the “sometimes” conditions applied in his district. The State presented no evidence that the drafters of the redistricting plan relied upon the legislators’ statements in drafting SD 23 or HD 68. At his deposition, Representative Jim McClendon, the principal 24 legislative architect of the House districts,2 attested that he did not remember testimony at the public hearings about packing, and did not otherwise testify about Jackson Senator or Gerald Sanders’s Dial, statements.3 the principal At trial, legislative architect of the Senate districts, recalled Sanders’s statement about a 62 % minimum black population for majority-black districts,4 but did not instruct Hinaman 2. McClendon worked on House districts while Senator Gerald Dial worked on Senate districts. Tr. Vol. III (doc. no. 217) at 256:18-21; Affidavit of Gerald Dial, APX 63 (doc. no. 76-4) ¶ 8. 3. McClendon was asked if “any of the legislators or any of the folks speaking at the public hearings express [sic] any concerns that the plan that was being proposed was going to result in pulling blacks from certain districts and concentrating them in black-majority districts?” McClendon testified that “if that came up, it was not a constant theme by any means” and it “wasn’t a high priority issue that I recall these folks talking about that.” McClendon Dep. (doc. no. 125-4) at 110:4-15. He could not “remember a specific conversation on that.” Id. at 111:9-14. 4. The majority suggests that Dial “considered” Sanders’s opinion, see ante, at 126, but Dial merely (continued...) 25 to incorporate that advice.5 alternative plans for Dial did reject certain Senate districts, including Sanders’s own plan, because “[i]t didn’t even meet the requirements [Sanders] had said keep [the majority-black districts] 62 percent at least.” Tr. Vol. I (doc. no. 215) at 77:14-15. evidence that Dial actually would But there is no considered Sanders’s statement when constructing the enacted majority-black testified that he remembered hearing it. Tr. Vol. I (doc. no. 215) at 37:9-25 – 38:1 (Dial recalling that Sanders “felt like that the minority districts should be at a minimum 62 percent minorities”). Even if Dial actually ‘considered’ Sanders’s statement, consideration remains at least one step removed from reliance. 5. When Dial was asked to identify the instructions he gave Hinaman, the suggestions of Jackson and Sanders were not among them. Tr. Vol. I (doc. no. 215) at 67:20 – 68:1, 69:16–25. Dial testified that he instructed Hinaman about “fill[ing] in the number of minorities to insure that we did not regress the minority districts,” but he also testified that his approach to doing so consisted of maintaining the black percentage of the population in each district. Id. at 67:23-25 – 68:1, 136:8-14. 26 Senate districts; ultimately-enacted to plans the also contrary, included the majority-black districts below Sanders’s suggested 62 %.6 For his part, Hinaman testified that he discussed with Dial and McClendon information they learned from meetings with black legislators, but the nature of the advice consisted of geographic-specific incorporate or exclude specific areas. (doc. no. 217) at 151:4-16. took “some” comments from requests to Tr. Vol. III Hinaman testified that he public hearings into consideration in his initial plan and “tried to get an overall feel for them as a group of all the hearings,” but that “[i]t’s not something you could implement all of their comments.” See Tr. Vol. III (doc. no. 217) at 148:23-25; Hinaman Dep., APX 75 (doc. no. 134-4) at 70:20-25. 6. SD 18 (59.10 % black) and SD 28 (59.83 % black). District Statistics Report, Def. Ex. 400 (doc. no. 30-39) at 2, 3. 27 In short, the statements relied on by the majority to conclude that strict scrutiny has been met consist of imprecise statements made by legislators addressing different topics at public hearings that neither legislator viewed as a serious forum for input. of that, the State presented no evidence On top that the drafters actually incorporated Sanders’s or Jackson’s guidance into the design of the relevant districts. ii. Analysis As stated, the majority holds that the Jackson and Sanders comments provided the State a strong basis in evidence to conclude that it should draw both SD 23 and HD 68 within a range of 62 to 65 % black. 121 (“We scrutiny conclude because that the [SD state 23] had a See ante, at satisfies strong strict basis in evidence to believe that ability to elect for purposes of the Voting Rights Act required black population percentages of 62 to 65 percent in this area. 28 The drafters drew a district in that range.”); id. at 304 (applying same approach to HD 68). With this holding, the majority errs in at least eight ways. First, specific. 60, the were not geographically As the majority acknowledges, see ante, at neither specific comments to Sanders the nor Jackson conditions in offered SD 23 a and proposal HD 68.7 Conclusory, geographically imprecise descriptions have “little probative value” in equal-protection analysis. Croson, 488 U.S. at 500-01 (rejecting reliance on 7. As the majority acknowledges, Sanders referred to all majority-black districts in the State, and, consistently, Dial understood Sanders’s 62 % statement as applicable to “all districts,” in contrast to other instructions Sanders provided that were specific to SD 23. Tr. Vol. I (doc. no. 215) at 37:13-25 - 38:1. As for Jackson’s comments, the State argued he addressed “that part of the State” (without defining “that part”), Def. Remand Br. (doc. no. 263) at 54, and the majority understood him to refer to “his area.” See ante, at 60. For my part, I have been unable to discern Jackson’s intentions, given his various vague and nonspecific references to “these House and Senate districts,” “those districts,” and “a minority district.” Reapportionment Comm. Oct. 13, 2011 Hrg. Tr. (doc. no. 30-23) at 8. 29 legislator’s statement that racial discrimination existed “in this area, and the State, and around the nation” because it was not specific to the relevant city); accord Shaw II, 517 U.S. at 902 (concluding that remedy tailored to one region of the State could not justify remedy State). applied to a different area of the Indeed, without district-specific demographic evidence, there districts are is not no way based to on be sure that stereotypes the about two black voting behavior. Second, remedies. the legislators proposed imprecise Because Jackson was concerned about packing, his suggestion that a majority-black district “could be sixty-two percent or sixty-five percent”--in contrast to his earlier reference to a hypothetical district that is 99 % black--is most logically read as a casual reference to theoretically possible lower percentages that would contrast, sustain Sanders majority-black proposed 30 a flat districts. 62 % In floor, suggesting that, “sometimes,” a higher or lower percentage of total black population would be necessary to achieve a district-specific tailored approach. Third, the majority fails to recognize that Jackson and Sanders made proposals that, on their face, do not address about the racial spreading what question: packing the districts. “To precise and black Jackson Sanders population about too was concerned cracking, thin or across Neither focused on the relevant question: extent must we preserve existing minority percentages in order to maintain the minority’s present ability to elect the candidate of its choice?” Legislative Black Caucus, 135 S. Ct. at 1274. Ala. Without underlying demographics, we do not know if they would have reached the same result if they had provided an answer to the relevant question. Fourth, and relatedly, there is no evidence that the remedy proposed by Sanders was tailored to the State’s compelling interest in achieving § 5 compliance 31 instead of a different goal, self-interest in re-election.8 such as a legitimate As Dial testified, “I never had a senator [in a majority-minority district] tell me to not put too many minorities in his or her district.” Tr. Vol. I (doc. no. 215) at 96:14-15. The narrow tailoring requirement demands a fit between the means and the particular end justifying the State’s use of race--not some altogether different end. Fifth, that Sanders felt comfortable proposing a noticeably lower percentage (57.75 %) in his own Senate district just months after recommending a 62 % floor in all majority-black districts, see Sanders Senate Plan, 8. Because Jackson focused on reducing the percentage of black voters, I assume that he was not motivated by incumbency protection. To this end, I take judicial notice that Jackson--who expressed concern about placing too many blacks within a district--has never faced a general election opponent, but Sanders--who expressed concern about establishing a minimum floor of black would-be supporters--usually has faced general election competition. See Alabama Votes, Elections Division Data, 32 C-47, at 5, suggests one of two things: either his original recommendation was never intended to apply to his own district, or it was not based on a “reasoned, principled explanation.” Austin, 136 omitted). S. Ct. Fisher v. Univ. of Texas at 2198, 2208 (2016) (citation The majority insists that the legislature was “entitled” to rely on Sanders’s oral public hearing comments instead legislature of chose his plan gather to written because “the input about its redistricting effort through public hearings.” at 129. Ante, But without underlying data or analysis, it is impossible to determine whether it was reasonable to rely on either proposal. Moreover, legislature’s alternative the majority’s unreasoned plan belies Sanders’s credibility. acceptance dismissal its attempt of of the Sanders’s to bolster The majority declares Sanders “an expert in the politics of the Black Belt and Senate District 23” and recites a litany of his experience. 33 See ante at 125. Sanders is so legislature’s But if the majority truly believes qualified, unexplained why does it rejection written plan for his own district? accept of the Sanders’s Sanders’s knowledge and credibility is not disputed; rather, I question the court’s ability to evaluate, rigorous strict-scrutiny purported reliance on while applying standard, one of his the the State’s suggestions but dismissal of the other, without evidence in the record adequately explaining the basis of that choice. ante at 19 (citing Dial’s testimony that the See State rejected Sanders’s own Senate plan solely because it did not comply with Sanders’s public hearing comments). Indeed, that Sanders himself said that abstract public hearing testimony “doesn’t mean anything,” Reapportionment Comm. Oct. 18, 2011 Hrg. Tr. (doc. no. 30-28) at 6, should at least give a court applying strict scrutiny pause about preference. 34 the State’s supposed Sixth, actually the State relied on presented the no evidence legislators’ designing the relevant districts.9 that comments it when The State can hold a strong basis in evidence only if that evidence reflects its “actual purpose,” and not mere “speculation about what ‘may have motivated’” it. Shaw II, 517 U.S. at 908 n.4. Seventh, in the absence of evidence of whether and how the drafters actually used the legislators’ 9. For the same reason, trial testimony from Alabama Democratic Conference member Dr. Joe Reed and prior testimony from plaintiffs’ expert Dr. Theodore Arrington relating to recommendations for total black percentage in majority-black districts may not play any role in the strict-scrutiny analysis. Compare ante, at 122 (stating that Reed and Arrington testimony “confirm the reliability” of statements made by Jackson and Sanders). Because there is no evidence that the State relied on this testimony to craft district lines for SD 23 and HD 68--and, of course, it could not possibly have relied on after-the-fact trial testimony--it cannot establish a strong basis in evidence. See Bush, 517 U.S. at 971 n. * (finding that legislature’s purported reliance on 1992 election results cannot justify challenged redistricting where those results “were not before the legislature when it drew the district lines.”). 35 comments, the majority assumes that the drafters determined that Sanders’s statement set a 62 % floor and Jackson’s passing reference set a 65 % ceiling, and the majority apparently finds this range applicable to both Senate and House majority-black districts in the West Black Belt. See ante, at 121, 307, 345-46, 379. But there is no evidence the State ever applied, or even contemplated, that range. Nor is there evidence that the State understood the comments as applicable solely to the West Black Belt region; in fact, Dial said the comments across exact applied the opposite: to State. 37:13-25 - 38:1. “all Tr. he understood Sanders’s [majority-black] districts” Vol. I (doc. no. 215) at The final redistricting plans provide ample evidence that, despite Dial’s understanding, the drafters did not adhere to this imagined range: five of eight majority-black Senate districts10 and 18 of 28 10. Two majority-black Senate districts fell below (continued...) 36 majority-black House districts, including two of the West Black Belt’s six House districts, fell outside the range.11 Eighth, and finally, the comments were not “sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them,” Fisher, 136 S. Ct. at 2211, so that the court can reasonably assure itself that the State did not rely on racial stereotypes. Sanders’s 62 % minimum: SD 18 (59.10 % black) and SD 28 (59.83 % black). Three fell above Jackson’s 65 % suggestion: SD 19 (65.31 % black), SD 26 (75.13 % black), and SD 33 (71.64 % black). See District Statistics Report, Def. Ex. 400 (doc. no. 30-39). 11. Seven majority-black House districts fell below Sanders’s 62 % minimum: HD 19 (61.25 % black), HD 32 (60.05 % black), HD 52 (60.13 % black), HD 53 (55.83 % black), HD 54 (56.83 % black), HD 97 (60.66 % black), and HD 98 (60.02 % black). Eleven majority-black House districts fell above Jackson’s 65 % suggestion: HD 55 (73.55 % black), HD 57 (68.47 % black), HD 58 (72.76 % black), HD 59 (76.72 % black), HD 60 (67.68 % black), HD 67 (69.15 % black), HD 71 (66.90 % black), HD 76 (73.79 % black), HD 77 (67.04 % black), HD 78 (69.99 % black), and HD 103 (65.06 % black). See District Statistics Report, Def. Ex. 403 (doc. no. 30-36). 37 This is, after all, strict scrutiny. The record reflects no data, studies, or even anecdotal accounts relied on by suggestions.12 Jackson or Sanders to formulate their We must be able to ask: How did the legislators formulate their ideas? What time period and geographic scope did they address? What data did they rely upon as the basis for their comments? How did the State understand and implement the suggestions? Here, with only a “few stray ... statements” plucked from a voluminous hearing record, we are left with only guesses. Ricci, 557 U.S. at 591. (I suspect that, if answers to these questions were in the record, Sanders and Jackson might have admitted that their opinions were formed less by careful analysis and more by an off-the-cuff invocation of the now-discarded rule of 12. The majority’s reliance on testimony from Dr. Reed suffers from the same problems as the comments of Jackson and Sanders; that is, Dr. Reed offered only generalizations about the appropriate percentage of black population in all majority-black districts, without offering district-specific evidence. 38 thumb which population had long necessary considered for black candidate of their choice. a 65 % voters total to black elect the See, e.g., Barnett v. City of Chicago, 141 F.3d 699, 702–03 (7th Cir. 1998) (“[I]t is a rule of thumb that blacks must be at least 65 percent of the total population of a district in order to be able to elect a black.”). To say the least, their comments come suspiciously quite close to, if not coincide with, this racially stereotypical rule, a circumstance which should raise a red flag and warrant our inquiry into the underlying district-specific demographic bases, if any, for the comments before we can rely on them.) C. Racial Targets While I have observed that the comments of Sanders and Jackson are inadequate to assess whether the State used impermissible behavior, it cannot stereotyping be about overlooked 39 black that voting affirmative evidence in the record stereotyping did occur. demonstrates that racial The record makes abundantly clear that, in redrawing the majority-black districts at issue achieve here, the mechanical State of racial Alabama targets attempted based on to a thoughtless repetition of the black percentage of each district’s population under district lines as drawn in 2001. Since that approach is profoundly inconsistent with the State’s burden to demonstrate that its use of race in each district was carefully considered, narrowly tailored, and supported by a strong basis in evidence, it serves as an important complement to the district-specific strict-scrutiny analysis.13 13. It is an open question whether direct evidence of a statewide redistricting approach that is incompatible with a narrowly tailored approach to the use of race could alone be sufficient to conclude that the State has failed to meet strict scrutiny in a particular district. The Supreme Court remanded for this panel to conduct a district-specific analysis with respect to racial predominance, but made no such statement as to strict scrutiny. Ala. Legislative (continued...) 40 An assessment of narrow tailoring first requires a precise understanding interest. compelling To of narrowly interest the tailor in State’s its compelling approach compliance to with a the retrogression requirement of § 5 of the Voting Rights Act, the State’s approach should have been “reasonably necessary” under § 5. 921 (1995) Miller v. Johnson, 515 U.S. 900, (“[C]ompliance antidiscrimination laws districting the where cannot challenged with federal justify race-based district was not reasonably necessary under a constitutional reading and application of those laws.”); accord Shaw II, 517 U.S. Black Caucus, 135 S. Ct. at 1266. In fact, in its strict-scrutiny analysis, the Supreme Court concluded that both “the District Court and the legislature asked the wrong question with respect to narrow tailoring,” which “may well have led to the wrong answer.” Id. at 1274 (emphasis added). As strict scrutiny requires the court to interrogate the legislature’s actions leading up to its race-based decision, one could conclude that this wrong approach may well have been fatal. However, because the State has failed to establish it had a strong basis in evidence for the particular districts at issue, I need not reach that conclusion here. 41 at 911 (holding additional that State’s majority-black remedy, district, was creating not an narrowly tailored because it was “not required under a correct reading of § 5”). Although the State’s approach need not have been “actually necessary” to comply with § 5, the State must still have held a “strong basis in evidence” to “believe” its use of race was required. Ala. Legislative Black Caucus, 135 S. Ct. at 1274. Here, the State’s interest in § 5 compliance “does not require particular a covered numerical jurisdiction percentage. to It maintain requires a the jurisdiction to maintain a minority’s ability to elect a preferred candidate of choice.” Ala. Legislative Black Caucus, 135 S. Ct. at 1272 (citing 52 U.S.C. § 10304(b)). The State should have known the correct requirement during drafting: Guidelines provided that Department its § 5 of Justice preclearance determinations are not based “on any predetermined or fixed demographic percentages.... 42 Rather, in the Department’s view, this determination requires a functional analysis of the electoral behavior within the particular jurisdiction or election district.... [C]ensus data alone may not provide sufficient indicia of electoral behavior determination.” Id. to make (quoting the requisite Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, 76 Fed. Reg. 7471 (2011)). In simple terms, the State should “To have preserve asked existing itself: minority what extent percentages we order in must to maintain the minority’s present ability to elect its candidate of choice?” Ala. Legislative Black Caucus, 135 S. Ct. at 1274. By any measure, the approach actually taken by the State was woefully misguided: the drafters applied “mechanical racial targets,” id. at 1267, even though information about black electoral behavior, which would have furthered functional, the State’s district-specific 43 ability to analysis conduct of a black citizens’ ability to elect the candidates choice, was readily available. of their See Ala. Legislative Black Caucus, 989 F. Supp. 2d at 1345 (Thompson, J., dissenting) readily (describing available drafters’ political failure data); to accord consult Bush, 517 U.S. at 967 (plurality opinion) (concluding that it was “evidentially significant that at the time of the redistricting, the State had compiled detailed racial data for use in redistricting, but made no apparent attempt to compile, and did not refer specifically to, equivalent data regarding communities of interest.”). Randy Hinaman, the State’s technical adviser, explained that he instead “tried to draw those [majority-black] districts as close to the [black percentage] numbers as possible and practicable as they were in the 2001 plan to avoid problems preclearance.” Senator Gerald examine the with potential Section 5 Tr. Vol. III (doc. no. 217) at 164:4-7. Dial voting acknowledged behavior 44 of that he individual did not districts when guiding the drafting of Senate districts. Vol. I (doc. no. 215) at 136:8-14. mechanically maintained majority-black recognized question that with “the respect Because the State minority districts, the to percentages Court legislature narrow Tr. has asked in already the wrong tailoring.” Ala. Legislative Black Caucus, 135 S. Ct. at 1274. District-specific State’s misguided districts at evidence approach issue corroborates extended here. Hinaman that the the two touted his to achievement of drawing an SD 23 that was “very close to getting back to the identical numbers that [it was] 10 years ago,” by which he meant that the resulting “total black percentage” was identical. Tr. Vol. III (doc. no. Although 217) at 186:19-25 – 187:1. the State added a net 23,399 people to SD 23, Hinaman managed to maintain almost identically the black percentage, from 64.76 % under the old lines to 64.84 % under the new ones. Senate Districts Pop. Changes from 2010 to 2012, 45 ADC Supp. (doc. Ex. no. 5; Comparison 263-2) acknowledges that, at of 4. “The Minority Indeed, plaintiffs Percentages the argue majority with some force that, given the extent of the changes to the districts, the maintained black they did was only way the population through a drafters percentages policy of could as racial have close as targets.” Ante, at 119-20 (emphasis added). Under-populated HD 68 similarly reflects application of a mechanical racial target. managed to percentage keep the black population points--increasing it The State to from the within two 62.55 % to 64.56 %--even though the State added a net 8,835 people to address substantial under-population. Comparison of Minority at Percentages (doc. no. 263-2) 2; House Districts Pop. Changes from 2010 to 2012, ADC Supp. Ex. 4. total Stated differently, the State increased HD 68’s population by 24 % while maintaining percentage within just 2 % of the prior plan. 46 a black With its mistaken conception of § 5 compliance, the State reduced the likelihood that it would reach the right result--in other words, that it would tailor its race-based action circumstances. Legislative as narrowly as possible under the But asking the “wrong question,” Ala. Black Caucus, 135 S. Ct. at 1274, also meant that the information the State actually reviewed and the analysis race-based it approach conducted had little, when if tailoring any, its correlation with the approach “reasonably necessary” for statutory compliance. our This leaves the court--required to conduct analysis position. using strict scrutiny--in a difficult We have no demographic evidence before us specific to SD 23 or HD 68 about black voting behavior, past election results, necessary for citizens’ ability choice in considered those that or determining to elect other how to the candidate districts--because kind of relevant preserve the information. 47 factors black of their State never We have no evidence about how the State information--because it did not. about how the State weighed We have no evidence considered approaches--because it did not. that alternative In other words, the types of evidence the State would need to establish a strong basis in evidence are simply absent from the record because decision-making they in the were first absent from Under instance. its these circumstances, I cannot conceive how the majority could conclude that the State had a strong basis in evidence and the State’s approach was narrowly tailored. Similarly, other courts have made short work of the State’s narrow-tailoring arguments where the State failed to make even the barest showing that it has conducted an appropriate inquiry. Reviewing a redistricting plan adopted by the Virginia legislature, it was easy for a three-judge court to conclude that the plan legislature was used not “a narrowly [black 48 tailored voting-age where the population] threshold, as opposed to a more sophisticated analysis of racial boundaries. voting patterns,” to draw district Page v. Virginia State Bd. of Elections, No. 3:13-cv-678, 2015 WL 3604029, at *18 (E.D. Va. June 5, 2015). Likewise, legislature mechanically district with a when the drafted 55 % black South each Carolina majority-black population, another three-judge court found that the legislature’s approach was not narrowly tailored and could not survive strict scrutiny. (D.S.C. Smith v. Beasley, 946 F. Supp. 1174, 1210 1996). That court recognized that consideration of the relevant facts “was not done in the present cases because of the insistence that all majority-minority districts have at least 55 % [black voting-age population] with no evidence as to registration or voter turnout,” facts that “should be considered when district lines district to be narrowly tailored. 49 are Id. drawn” for a Because the State of Alabama did not conduct an even minimally “reasonably compliance, sufficient necessary” this analysis for court’s it ability about to what was achieve to § scrutinize 5 the State’s use of race has been severely, if not fatally, hampered. Moreover, because it Sanders’s could and be reasonably Jackson’s argued “could that, be” and “sometimes” comments were generic and conclusory and were not supported by district-specific demographics, they constitute exactly the type of stereotyping about black voting behavior that strict scrutiny is intended to prohibit. *** The point is not that Sanders, Jackson, State of Alabama reached the wrong result. or the It might be the case that a range of 62 to 65 % is appropriate to 50 maintain black voters’ opportunity to elect the candidate of their choice in SD 23 and HD 68, and thus a design of those districts within that range could theoretically be narrowly tailored to meet the State’s interest in § 5 nonretrogression. Nor does it follow from my conclusion that the legislature was obligated to reject the suggestions of Sanders and Jackson, as the majority suggests. See ante, at 124-25. Rather, the State, having opted to utilize race in drawing the boundaries of SD 23 and HD 68, needed to do so with sufficient support to satisfy strict scrutiny. State has not presented--and the record But the does not otherwise contain--sufficient evidence to conclude that the State’s approach was narrowly tailored. Absent an adequate record, this court cannot evaluate the State’s use of race in drawing SD 23 and HD 68. And that inability is fatal, for “blind judicial deference to legislative or executive pronouncements 51 of necessity has no place in equal protection analysis.” Croson, 488 U.S. at 501. Because the demonstrating State that has its not use met of its race burden was of narrowly tailored, I cannot give these districts my imprimatur. II. Ten Additional Districts I now turn to ten additional districts for which the majority concluded predominate. plaintiff must In the “show, mistakenly that race racial-predominance either through did not inquiry, a circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” Ala. Legislative Black Caucus, 135 S. Ct. at 1267 (quoting Miller, 515 U.S. at 916) (emphasis added). As the standard’s name suggests, the use of race must be not merely present, 52 but predominant; the drafters’ mere “consciousness of race” does not suffice. (plurality opinion). Bush, 517 U.S. at 958 Race predominates when “race for its own sake, and not other districting principles, was a legislature’s dominant and controlling rationale in drawing district lines.” use of racial targets Miller, 515 U.S. at 913. “provides evidence” The that race predominated, but must be accompanied by a showing that the use impact of on district’s] a the target “had drawing of boundaries.” a direct at and least Ala. significant some of Legislative Caucus, 135 S. Ct. at 1267, 1271. [a Black When determining whether race or race-neutral factors predominated, a court should take a holistic approach, reviewing the entirety of the drafters’ decisions that resulted in the district’s boundaries. While the racial-predominance standard is rightfully demanding, the majority’s application of it errs in several ways, causing it to conclude mistakenly 53 that race did not predominate in ten districts. First, I will explain several significant legal errors that led to significant analysis. Then, factual errors will explain I in why the majority’s the evidence supports a racial-predominance finding in each of those ten districts. A. i. First, Racial-Predominance Standard Race-Neutral Districting Criteria the majority goes astray when it categorically states: “When the plaintiffs proceed with only indirect evidence that race predominated and the design of a district can be explained by traditional districting criteria, the plaintiffs have not satisfied their burden of proof.” Ante, at 25. The majority erroneously finds dispositive the mere possibility that traditional race-neutral district’s boundaries. criteria could explain a This categorical approach does not comport with the Supreme Court’s guidance. 54 The injury underlying a racial gerrymandering claim stems from the racial classification itself, not the classification’s outward manifestations. U.S. at state 913 (observing action, not that its the stark constitutional violation”). Miller, 515 “racial purpose manifestation” is of “the The harms stemming from a racial gerrymander “include being personally subjected to a racial classification, as well as being represented by a legislator who believes his primary obligation is particular racial Caucus, 135 citations, Therefore, S. and if predominantly lines, a to represent group.” Ct. at cognizable on can race injury members Legislative (brackets, quotation plaintiff relied the Ala. 1265 internal a only prove when exists marks that drawing even of a Black ellipses, omitted). the State district if that classification did not distort the district’s shape or otherwise violate traditional redistricting principles. Miller, 515 U.S. at 910-914. 55 Race predominates when race dwarfs other considerations and functions as an overriding factor determining the placement of district lines. See Shaw II, 517 U.S. at 906-907 (rejecting the argument that predominance cannot occur “where a State respects or complies with traditional districting principles,” because the legislature’s ability to “address[] these interests does not in any way refute the fact that race was the legislature’s (brackets, citation, predominant and internal consideration”) quotation marks omitted). Indeed, race sometimes strongly correlates with race-neutral criteria, such as partisan politics and communities of interest, including “shared broadcast and print media, public transport infrastructure, and institutions such as schools and churches.” Bush, 517 U.S. at 964 (plurality opinion). In other words, a boundary race-based line actually drawn for reasons could easily be explained after-the-fact by pointing 56 instead to party affiliation or a railroad boundary. Were our analysis ‘race-neutral focused merely on identifying for a district’s justifications’ boundaries, we would frequently be able to find them, even in the most egregious circumstances where race served as the one and only factor actually motivating the drafters. Moreover, evidence” the when majority’s “the design requirement of a of district “direct can be explained by traditional districting criteria” cannot be reconciled with the thrust of the Supreme Court's decisions in Miller or this case. stated that a plaintiff may In Miller, the Court establish racial predominance “either through circumstantial evidence of a district’s shape and demographics or evidence going to legislative purpose.” U.S. at 916 (emphasis added). rely heavily on more direct Miller, 515 The Court proceeded to circumstantial evidence of the district’s shape and its use of land bridges, together 57 with the relevant racial demographics, in reaching its conclusion the race predominated, offered “various alternative district State that based principles. on even though the explanations” for traditional Id. at 918-19. districting In our case, the Court reiterated the principle that circumstantial evidence alone may be enough to establish predominance. Ala. Legislative Black Caucus, 135 S. Ct. at 1267. This analysis forecloses the majority’s insistence that race predominates only when a district contains direct evidence of race-based decisionmaking or explanations based on traditional districting criteria are impossible. As an analytical matter, direct evidence is not an inherent essential aspect element of of the a constitutional racial harm gerrymandering or an claim. Circumstantial evidence of racial intent can be just as potent as direct evidence, and the mere fact that traditional race-neutral districting principles ‘might’ 58 explain what the legislature did does not mean that the legislature in principles. fact predominantly utilized those For example, if the evidence shows the jurisdiction set a particularly high racial target and the drafter states that he moved large numbers of voters in and out of the district to reach that target, with those moved in being almost all black and those moved out being almost all white, a court could conclude from this circumstantial evidence that race predominated, compact even and if the consistent redistricting principles. Caucus, 135 district S. Ct. at with were other relatively traditional See Ala. Legislative Black 1263 (indicating that stark demographic evidence is significant when observing that the legislature sought to maintain a black population of 72.75 % in a challenged district that added 15,785 new individuals, only 36 of whom were white). Similarly, a showing that the legislature relied on racial data and did not consider non-racial information 59 that might otherwise explain the challenged district’s lines could establish predominance even in the absence of direct evidence based on the drawing of district lines. See, e.g., Bush, 517 U.S. at 966-967 (plurality opinion) racial (emphasizing data that available but the not State other had data detailed concerning traditional districting principles). Accordingly, involve a legislature racial-predominance holistic analysis determination subordinated should whether traditional “the race-neutral districting principles ... to racial considerations.” Ala. Legislative Black Caucus, 135 S. Ct. at 1270 (quoting Miller, 515 U.S. at 916). The key word here is say, “subordinated.” That is to because the statewide evidence establishes that the legislature’s approach prioritized race, see, e.g., Tr. Vol. I (doc. no. 215) at 63:4-9, 124:16-22 (Dial describing avoiding retrogression as the “ultimate goal” and “first priority”), then so long as there is some evidence, 60 direct or circumstantial, corroborating the application of that overarching appropriate to race-neutral approach find that criteria. race-neutral factors to race A might also a district, it predominated demonstration explain some is over that of a district’s boundaries does not necessarily negate that conclusion. The majority’s analysis of SD 24 demonstrates its error: It credits the State’s argument that the district’s expansion into a portion of Pickens County that was 74 % black and exclusion of a portion of the county that was 75 % white did not count as evidence of racial predominance because the State did smooth lines that hugged the state border. at 136. so using See ante, But that use of valid race-neutral criteria does not end the analysis. Instead, we must consider evidence of the State’s application of its policy to the district and its role in the overall design of the district; in SD 24, the plaintiffs 61 pointed to both preservation of the racial target--exceeded by just +0.44 %--and testimony from two legislators that the State was keenly aware of its mechanical targets when drawing at least some See infra at 131-34. of the district’s boundaries. Indeed, Dial frankly admitted that SD 24 expanded into Pickens County because the district “had to have more minorities.” (doc. no. 215) at 48:19-25. Tr. Vol. I Viewed as a whole, the evidence clearly establishes racial predominance even though the State’s use of valid race-neutral criteria also affected some of the district’s boundaries. Instead of halting the predominance analysis where traditional race-neutral criteria can explain some of a district’s boundaries, I would consider whether there is evidence, affected determine some direct or of district’s the whether race circumstantial, or boundaries race-neutral that and race then criteria predominated over those criteria when looking at the district as a whole. In equal-protection analysis, we 62 must ask why the drafters actually made the choices they did--that is, what was their motive--regardless of the range of other possible explanations; that a drafter could have drawn a boundary in a particular way to achieve ends other than race does not prove that racial considerations did not in reality predominate over race-neutral ones in the State’s ultimate design of the district. that strict Shaw II, 517 U.S. at 908 n.4 (stating scrutiny requires interrogation of a legislature’s “actual purpose,” not “speculation about what ‘may have motivated’” it). Where two possible explanations exist, those possibilities must be viewed in the context of the State’s policy of meeting racial targets if the evidence reflects that it had an overarching role in the design of the district. ii. State’s Policy of Meeting Racial Targets Moreover, application in the its majority’s district 63 statement analyses and that repeated “When the plaintiffs proceed with only indirect evidence that race predominated and the design of a district can be explained by traditional districting criteria, the plaintiffs have not satisfied their burden of proof,” overlooks, or at least places too little weight, on the State’s express policy of meeting racial targets. In other is words, insufficient while direct this policy, evidence to by itself, establish racial predominance, it is still important evidence in making a determination as to whether race predominated as to any district. As the Supreme Court found, when drawing the 2012 House and Senate plans, the State employed a policy of attempting to draw majority-black districts in such a way that the percentage of black population in the new districts matched the percentage under the district’s old lines. at 1267. Ala. Legislative Black Caucus, 135 S. Ct. The State prioritized that policy “above all 64 other districting one-vote).” criteria (save one-person, Id. To be sure, as stated, the existence of a racial target does not, by itself, establish predominance. A racial target may end up playing little or no role in how a particular constructed. district’s lines are actually And even when a racial target is one motivating factor in the drawing of some lines, race may still not predominate over other non-racial factors in the design of the district as a whole. Nevertheless, the existence of a racial target does not drop out of the picture in a court’s analysis whether the racial-predominance standard is met. It “provides evidence,” Ala. Legislative Black Caucus, 135 S. Ct. at 1267--and sometimes very evidence--of the State’s use of race. targets should not be treated equally. compelling But all racial They may vary in nature, the circumstances of their creation, and the circumstances of their application. 65 A legislature might use a racial target to preserve (not too many and not too few) the same percentage of minority voters in a district. a racial target as a floor A legislature might use that could be low (for example, at or slightly above 50 % minority) or high (for example, above 60 % minority). A legislature might use a racial target as a general guide or range or it might insist on mathematical precision such that the target becomes a district’s boundaries. driving force behind the Each of these factors impacts the evidentiary weight to be given the existence and use of a racial target. Here, the targets were set at high percentages of minority population; they were most constraining (not too many and not too few); and reflected a rigorous intent to possible. direct reach as many majority-black districts as Ample testimony from the drafters provides evidence that the State had a policy of maintaining, to the extent practical, black percentages 66 in every majority-black district. Hinaman explained that he “tried to draw those [majority-black] districts as close to the [black percentage] numbers as possible and practicable as they were in the 2001 plan.” Vol. III (doc. no. 217) at 164:4-7. Senator Tr. Dial testified that avoiding retrogression was the “ultimate goal” and “first priority.” at 63:4-9, 124:16-22. Tr. Vol. I (doc. no. 215) Dial instructed Hinaman that, “We didn’t want to regress any of the [majority-black] districts” and, “We wanted to make sure the [majority-black] districts stayed as they were and we did not do away with any and that the population, as they grew, that they grew into the same proportion of minorities that they originally had or as close to it as we could get it.” 125-3) at 17:7-22 Dial Dep., APX 66 (doc. no. (emphasis McClendon explained districts: “[W]e the tried added). Representative same to approach look at the for 2010 House census, overlay it on the districts, and try not to change the 67 percentages of the citizens, the black citizens, in a district any more than we had to. Tried to keep them in about the same proportion as they were.” III (doc. no. 217) at 222:8-12. focus on maintaining the Tr. Vol. Hinaman explained his black percentage in each district, which superceded the race-neutral criterion of keeping precinct, a precincts majority whole: white He “may precinct add and a a white majority African American precinct; but if you look at the end number, if it did not retrogress the overall end number [in that district], then they were added in. some reason they retrogressed [he] would split precincts.” that number, If for then ... Tr. Vol. III (doc. no. 217) at 144:2-7. Indeed, where other three-judge panels have applied Ala. Legislative Black Caucus to Shaw claims, they have each recognized that racial targets deserve significant weight. 117, See Covington v. North Carolina, 316 F.R.D. 140 (M.D.N.C. 2016) 68 (three-judge court) (concluding, after describing legislative purpose to achieve racial target of 50 % plus 1 in majority-black districts, that “[f]or all the challenged districts, the overwhelming statewide evidence provides decisive proof that race predominated.” (emphasis added)); Harris v. McCrory, 159 F. Supp. 3d 600, 610 (M.D.N.C. Feb. 5, 2016) (three-judge court), prob. juris. noted, 136 S. Ct. 2512 (2016) (concluding that race predominated where “overwhelming evidence in this case shows that a BVAP [black voting age population]-floor, or a racial quota, was established in [the challenged districts]”); Bethune-Hill v. Va. State Bd. of Elections, 141 F. Supp. 3d 505, 524 (E.D. Va. 2015) (three-judge court), prob. juris. noted, 136 S. Ct. 2406 (2016) (“[Ala. Legislative Black Caucus] could not be clearer that use of racial BVAP floors constitutes 69 evidence--albeit significant evidence--of predominance.”).14 Moreover, one must also not lose sight of the big picture presented by circumstantial evidence. Here, the three drafters hit their racial target within percent in 21 of 36 majority-black districts, and even more precisely within one percent of the target in 16 of those which I districts, conclude majority does not. including that all race ten districts predominated but for the If something happens once, it could be a coincidence; if it happens again and again and again--indeed, most of the time--that is unmistakable evidence of intent. The fact that, over and over 14. Although each panel recognized that racial targets deserved significant evidentiary weight, factors specific to each State’s application of the targets impacted the ultimate predominance conclusions. For example, in Bethune-Hill, the 55 % BVAP target was relatively low and the panel found only that the target was “used in structuring the districts,” not that the legislature mechanically applied it. 141 F. Supp. 3d at 519. 70 again, the drafters hit their racial target provides very compelling circumstantial evidence that it is what they intended to do. Finally, my approach--which considers the nature of the racial target, the circumstances of its creation, and the circumstances of its application--does not result in a “per se” finding of racial predominance or a “rebuttable presumption,” ante at 48, 247, as I agree with the majority that race did not predominate in 12 districts in large part because this circumstantial evidence does not apply in those districts. Indeed, I am not saying that my approach compels a finding of racial predominance; I just think the evidence should not be ignored. iii. Alternative Plans The majority states that, “If an alternative district has identical lines, we take the plaintiffs’ offering of that plan as a concession that race did not 71 predominate in the enacted district.” Ante, at 35. The majority overstates its case. In racial-discrimination defendant intentionally information decision. the cases, whether discriminated defendant considered the turns on before its Thus, in McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995), the Supreme Court rejected an after-the-fact justification for the challenged action because “[t]he employer could not have been motivated by the knowledge it did not have and it cannot now claim that the nondiscriminatory employee reason.” was Id. at fired for the 360. While the inquiry is more challenging when a Shaw claim depends on circumstantial evidence of legislative intent, the same equal-protection principle applies: what ultimately matters is the State’s intent at the time it drew district lines. See, e.g., Shaw II, 517 U.S. at 910 (refusing to credit State’s reliance on historical and social science reports to justify its race-based 72 approach because reports were created after districts had been drawn). the enacted Alternative maps generated only after districts have been drawn do not necessarily preclude a finding that race predominated where the plaintiff has otherwise met its burden. Because, as I have indicated previously, application of race-neutral criteria can sometimes create the same result as racial ones, see supra at 56-57, alternative plans do not always dispositively establish that race did not predominate, especially in the face of clear evidence, direct or circumstantial, of the U.S. 234 legislature’s intent. Relying (2001), show at achieved the on Easley State the least its v. argues that Cromartie, that the legitimate the 532 plaintiffs legislature political “‘must could have objectives in alternative ways that are comparably consistent with traditional districting districting alternatives principles’ would 73 and have ‘that those brought about significantly greater racial balance.’” Def. Remand Br. (doc. no. 263) at 19 (quoting Easley, 532 U.S. at 258). The evidentiary State’s rule, racial-predominance argument distorts applicable inquiry Easley’s where depends entirely the on circumstantial evidence, and transforms it into a legal element of all Shaw claims, including those with direct evidence of racial purpose. This case is quite different from Easley, a case in which the State defended a racial-predominance claim with persuasive evidence that political gerrymandering, rather than race, was the predominant motive of the legislature, and had also demonstrated that race and political party closely correlated. North Carolina Congressional Easley concerned a district that had been redrawn after a finding that race unconstitutionally predominated in Shaw II. The primary issue was whether the legislature was predominately motivated by race or partisan politics when it redrew the district. 74 The district court’s conclusion that race predominated depended on an exhaustive examination of circumstantial evidence, including precinct splits, voter registration data, and alternative decisions the State could have made, to parse whether the legislature was predominately motivated by race or by creating a safe partisan factual district. findings, “[c]aution because is “the Reviewing the Supreme Court the especially State district emphasized appropriate ha[d] court’s in articulated a this that case” legitimate political explanation for its districting decision, and the voting population is one in which political affiliation are highly correlated.” 532 U.S. at 242. race and Easley, In those circumstances, plaintiffs “must show at the least that the legislature could have achieved its legitimate political objective in alternative ways that are comparably consistent with traditional districting principles. also show that those districting 75 That party must alternatives would have brought balance.” about significantly greater racial Id. at 258. Easley does not apply to a case, like this one, where direct evidence of legislative intent indicates that the State “expressly adopted and applied a policy of prioritizing mechanical racial targets,” Ala. Legislative Black Caucus, 135 S. Ct. at 1267, rather than pursuing politics. a policy that prioritized partisan While the State now attempts to justify its actions on political grounds, it previously relied on evidence of legislative intent which reflected prioritization of compliance with its understanding of § 5 nonretrogression. evidence that political highlighted the Indeed, instead of presenting legislature gerrymander, evidence the showing pursued State that has the a legitimate consistently Republican-led drafters accommodated the requests of Democrats. See Def. Remand Br. (doc. no. 263) at 19 n. 1 (cataloguing testimony that drafters incorporated 76 requests of incumbent Democrats). The Supreme Court recognized as much in our case, citing Easley only as a contrast to the relevant predominance standard of Miller, and noting that Easley explained “the plaintiff’s burden in cases, unlike these, in which the State argues that politics, not race, was its predominant motive.” Ala. Legislative Black Caucus, 135 S. Ct. at 1267 (emphasis added). Three-judge does apply not here. in panels have circumstances agreed that comparable Easley to those See, e.g., Covington, 316 F.R.D. at 139 n.21 (three-judge court) (citing evidence that State defended partisan results of redistricting on grounds of Voting Rights Act compliance as “easily distinguish[ing] this case from the Cromartie cases, where there was substantial direct evidence supporting the State’s ‘legitimate political explanation for its districting decision’” (quoting 242)). 77 Easley, 532 U.S. at iv. The District-Specific Evidence majority incorrectly disregards district-specific circumstantial evidence that reflects actions that reduced the proportion inconsistently allocated, black residents. of, or Rather than looking for corroboration that the State brought its racial target to bear in a particular district, the majority treats the plaintiffs’ claim as if it were based on drafters a packing took to concept, reduce citing the any black actions the population to repeatedly conclude that race did not predominate in a particular about district. packing, but But because rather is this about case is not preserving majority-black population percentages (not too many and not too few), the majority’s approach is wrong. For example, despite committee guidelines to keep precincts whole, the majority considers precinct splits 78 suspicious only majority-black if the and precinct is majority-white split district between where a the majority-black district received a greater percentage of black people. See ante, at 55 (concluding that precinct splits alone do not create inference of racial predominance, in part because several splits “placed a higher black population percentage in a majority-white district than a majority-black district”). however, where the State achieved a Frequently, racial target exactly, its calculation of the racial makeup of that district without split precincts demonstrates that it would not have been able to hit its target without splits. For example, in HD 52, the State accomplished its racial target (60.11 %) almost exactly (60.13 %); without the use of six split precincts, the State would have black exceeded its percentage Analysis (doc. majority accorded target to no. significantly, 64.50 %. 263-3) no at weight 79 Def. 5. to the raising Precinct Split Nonetheless, precinct the the splits because they did not demonstrate a “clear pattern.” See ante, at 246. Although the splits reduced the black the percentage of population, they ultimately helped the drafters reach their target; the precinct splits therefore predominated provide when viewed evidence in the that context race of the statewide policy. The crucial problem with the drafters’ approach is not that they used non-traditional districting criteria to create improperly majority-minority districts, but that they disregarded traditional race-neutral criteria to achieve racial targets in their existing majority-minority districts. a district-specific that statewide Circumstantial analysis goal evidence of must that maintenance When conducting racial guide the of predominance, our State approach. ignored traditional race-neutral districting criteria to inch closer toward its racial target--even if it lowered the percentage of black population in the district--serves 80 as powerful evidence that the State’s racial target was brought to bear in a district. Historically, the Court has identified evidence of racial predominance legislature’s in disregard a of Shaw claim traditional where a race-neutral criteria placed more minority than white citizens in a challenged district. But, in each prior case, the racial-gerrymandering claim involved a challenge to the creation of a majority-minority district, which necessarily involves efforts to add high percentages of minority population. (citing evidence See Shaw I, 509 U.S. at 635-636 that district “winds in snakelike fashion through tobacco country, financial centers, and manufacturing areas until it gobbles in enough enclaves of black neighborhoods” (internal quotation marks and citation omitted)); Miller, 515 U.S. at 917 (affirming racial-predominance conclusion based in part on evidence “of narrow land bridges to incorporate within the district outlying appendages containing nearly 80 % 81 of the district’s total black population”); Bush, 517 U.S. at 973 (plurality opinion) (relying on evidence that district’s “many narrow corridors, wings, or fingers ... reach out to enclose black voters, while excluding nearby Hispanic residents.” (internal citation and quotation marks omitted)). In our case, in theory racial-predominance contrast, rests the on plaintiffs’ direct evidence concerning the drafters’ method of maintaining (not too many and not too few) majority-minority precise could ways. be applied precise a drafters Here, race-based allocation needed percentage districts supported majority-black the a by evidence approach of add blacks that to In large the achieve residents some amounts in mathematically racial-predominance districts. to using of in finding drafters a racially existing districts, of new the black population to achieve that goal; but to achieve that goal in other districts, the drafters needed to add new 82 white population so they could reduce the black population percentage, or they needed to sweep in and out large amounts of populations of both races. other words, evidence that the State swooped In large amounts of black population into a district is not the only type of evidence that supports a racial-predominance finding here. To be sure, the Supreme Court’s model analysis based on SD 26 also looked to the exceptionally high percentages of black population added to the district using non-traditional districting criteria. The Court described the drafters’ “remarkable feat” of adding a mere 36 white individuals to the district adding a total population of 15,785. Black Caucus, 135 S. Ct. at 1271. that precincts split between a despite Ala. Legislative The Court also noted majority-black and a majority-white district were “clearly divided on racial lines,” with heavily black portions of the precincts added to majority-black SD 83 26 and heavily white portions of the precincts added to majority-white SD 25. Id. But the Court also recognized the importance of the drafters’ approach to composition of The approvingly Court conclusion percentage existing that of the the determining the majority-minority cited the districts. majority’s legislature population racial prior “‘preserved’ was that ‘the Ala. black,’” Legislative Black Caucus, 135 S. Ct. at 1271 (quoting Ala. Legislative 1306). SD 26 Black had a Caucus, 989 remarkably F. high Supp. 2d 75.13 % at black population, the district with the second highest black percentage of any majority-black district in Alabama. See District Statistics Report, Def. Ex. 400 (doc. no. 30-39) at 3. black As such, in that district, preserving the percentage of the population required obvious disregard of race-neutral criteria to add sufficient black population. But preserving a black percentage with mechanical precision does not only require adding 84 black population; it requires achieving a racial balancing that sometimes involved the use of precinct or county splits, irregular appendages, and land bridges to discard ‘excess’ black population that would have otherwise left the State too far afield of its target. Where a district’s shape is “unexplainable on grounds other than the racial quotas established for those districts,” traditional evidence redistricting of “utter criteria” disregard provides for strong evidence that race predominated--regardless of whether that evidence effect on the reflects an minority additive population in or subtractive that district. Bush, 517 U.S. at 976 (plurality opinion) (citation and quotation marks omitted). By any measure, the State routinely disregarded race-neutral districting criteria to achieve a racial target, even criteria if reduced its the failure to minority district. 85 apply race-neutral percentage in the v. “Significant Number of Voters” Finally, the majority its used numerical minimum in establish racial predominance, an predominance the overly rigid analysis. plaintiffs To “must show that ‘race was the predominant factor motivating the legislature’s number of decision voters district.” within to or place without a significant a particular Ala. Legislative Black Caucus, 135 S. Ct. at 1270 (quoting Miller, 515 U.S. at 916) (emphasis added). The Supreme Court has “significant number of voters.” has relied on dramatic racial-predominance but provides clarity quantified a Frequently, the Court statistics conclusion little never obvious for that in made that three-judge a case, panels required to navigate “the complex interplay of forces that enter a legislature’s Miller, 515 U.S. at 915-16. 86 redistricting calculus.” For example, in Miller, the Court approvingly cited the panel’s conclusion that the use of a narrow land bridge to incorporate 80 % of a district’s “exceedingly used race. total black obvious” that Id. at 917. population the drafters made it deliberately In Bush, the plurality found “utter disregard of ... local election precincts” where 60 % of the challenged districts’ residents lived in split precincts. 517 U.S. at 974. In our case, the Court likewise did not clarify the statistical Court’s minimum model extent of analysis racial impact. concluding that The race predominated in SD 26 relied on seven precinct splits, “with the population in those precincts clearly divided on racial lines,” without quantification of that racial division. 1271. new Ala. Legislative Black Caucus, 135 S. Ct. at The Court also cited the relative proportion of population, individuals out “remarkable feat.” noting of that 15,785 Id. 87 adding total just 36 residents white was a Other three-judge panels have concluded that race predominated in districts where race explained the placement of only a small percentage of a district’s population. incumbent because In fact, legislator of her possibility that facing was race, this evidence excluded the alone panel was that from a a white district contemplated enough for the race to predominate: “It is not clear whether the addition or removal of one person on the basis of race could be sufficient to establish that race predominated in the drawing of a district.” n.28 (three-judge concluded that a Covington, 316 F.R.D. at 149 court). Nonetheless, “significant number of the panel voters” had been excluded where direct evidence established that the legislature arbitrarily increased a recommended minority percentage by less than one percentage point (0.58 %). Id. Another panel in that district described a 6.89 % increase in the black voting age population as “whopping,” and, where it corroborated 88 direct evidence racial of quota, legislative sufficient predominance. Harris, 159 intent to to achieve establish F. Supp. a racial 3d at 618 (three-judge court). Sometimes, my racial-predominance analysis considers the number or proportion of voters in a given district that district because ignored. But the degree the drafters hit their racial target were also placed within race-neutral matters here. or without criteria The had the been Supreme Court approvingly cited, as evidence of racial predominance, the majority’s previous finding that SD 26 “preserved” its percentage of minority population, where the district had a 72.69 % black population and was redrawn with a 75.13 % black population. Black Caucus, 135 S. Ct. at 1271. Court target agreed that provided predominance. coming within circumstantial In each of 89 the Ala. Legislative In other words, the 2.44 % of evidence districts a of I racial racial discuss below, the State came within less than 1 % of hitting its racial target. Although the Court and prior panels offer statistical guideposts for the predominance analysis, I proceed not with unwavering reliance on a calculator and statistically adherence to precise first determinations, principles. but with Race-conscious redistricting that separates a “significant number of voters” or “preserves” the minority percentage in a district obtains constitutional significance because it signals state-sponsored endorsement of the idea that voters may be identified and sorted principally based upon race. In Shaw I, the Supreme Court applied equal-protection principles to redistricting because it recognized that legislative action that classifies citizens based on race is inconsistent with principles of equality and stigmatizes individuals solely reason of their membership in a racial group. at 643. A district 90 warrants a by 509 U.S. racial predominance-finding where race had a significant enough impact to realize these harms. B. Application of Racial-Predominance Standard Having laid out my disagreements with the majority’s approach to racial predominance, I will now turn to Supreme the individual Court’s districts guidance in and, this applying and past the cases, explain why I would reach different conclusions from the majority’s on a number of the challenged districts. In assessing each district, I will follow the three-step approach the Supreme Court used in assessing SD 26: First, I start with direct evidence reflecting the “primary redistricting goal [] to maintain existing racial percentages in each majority-minority district, insofar as feasible”; second, I look at circumstantial evidence in the record to see whether “this goal had a direct and significant impact on the drawing of at least some of [the district’s] boundaries”; and, third, 91 I look for evidence of race-neutral factors actually considered by the drafters and determine whether those factors, or race-conscious decisions, predominated in the overall design of the district. Ala. Legislative Black Caucus, 135 S. Ct. at 1271. In the follows, discussion of focus particular I in individual districts on the that following corroborating circumstantial evidence: (1) how closely the drafters population hit in the each prior district; percentage (2) the of black frequency of county and precinct splits, and the comparative racial composition of those splits; (3) the ratio of blacks to whites added to the district; and (4) the shape of the district. Ct. at 1271 majority, relative words, See Ala. Legislative Black Caucus, 135 S. I I to (assessing also the examine each weigh level the of whether factor). net Like population under-population--in the 92 State the change other reshuffled the district’s inhabitants significantly more than its districts for equal-population objectives required. Moreover, with regard to the ten which I conclude that race predominated, it must be kept in mind that evidence that the drafters hit, within one percentage point, their admitted target of maintaining existing racial percentages paints a clear picture that the racial percentage in each district was specifically intended. As previously stated, if something happens once it may be coincidence, but, if it happens again and again and again, that is unmistakable evidence that it was intended. i. Jefferson County (HDs 52, 55, 56, 57, and 60) I conclude that race predominated in five Jefferson County House Districts: HDs 52, 55, 56, 57, and 60. At the heart of assessing the drafters’ approach to race in State--was Jefferson the County--and decision to 93 indeed, extract a across the majority-black House district from the County (HD 53) and move it far north to create a new majority-black district composed entirely of Madison County residents. Although the majority and I agree that race predominated in HD 53, the majority specific County. testimony to bases the its decision district’s new solely on factors location in Madison In doing so, the majority fails to account for from evidence that decision to the drafters played race that central a unnecessarily serves as role reshuffle direct in their residents of Jefferson County House districts based on an incorrect interpretation of § 5 compliance. Under the 2001 map, HD 52, 55, and 60 were each contiguous to HD 53 and, as a result, experienced substantial unnecessary population change under the new plan as each inherited black population from HD 53. HD 56 and 57, although located in southwest separated substantial from of it HD by population 53 HD 52, change 94 the 2001 also because map and experienced of the significant reshuffling of Jefferson County’s black population. Beyond this direct evidence, significant corroborating evidence that race predominated in the drafters’ approach may be found in each district: precise matches of racial targets; substantial reliance on split precincts, without which those targets would not have been achievable; the movement of significantly more population in and out of the district than necessary; and sometimes irregularly shaped districts. These factors contribute to my conclusion that race predominated in five Jefferson County House districts not recognized by the majority. a. Impact of Racial Predominance in HD 53 on Surrounding Districts Although, as stated, I agree with the majority that race predominated in the drawing of HD 53, I reach that conclusion on different grounds. 95 Race played a significant role in the drafters’ decision to move HD 53 from Jefferson County. House districts That transfer, which enabled within Jefferson County to achieve mathematically precise racial targets, should be given significant weight in the predominance analysis of its surrounding districts. As I previously explained, the drafters created for themselves specific an enormous (but challenge incorrect) through understanding their very of § 5 compliance, combined with a no-greater-than-2 % ideal population-size deviation. Caucus, 989 F. dissenting). committee’s Supp. 2d See Ala. Legislative Black at Because decision to 1314-17 of the tighten (Thompson, J., reapportionment significantly the deviation, many majority-black districts required the addition of significant black population to avoid ‘under-population.’ Nowhere challenge was felt the more effect acutely 96 of than that unnecessary Jefferson County, where compliance with the drafters’ approach required the addition of approximately 70,000 black people to the county’s existing districts--the equivalent Tr. (doc. Vol. III no. majority-black of a 217) district at House and 132:22-25 a – half. 133:1. Because Hinaman “knew that most of the--if not all of the minority those neighborhoods districts,” he were already concluded included “trying that in to repopulate them to get them back to deviation was going to retrogress 133:1-5; 125-4) see at most also if not McClendon 100:12-14 all of Dep., (testifying them.” APX that districts--Jefferson County minority underpopulated, we to somewhere”). and To had get overcome challenge, Hinaman recommended ultimately adopted a plan that 67 (doc. “[a]ll of districts the that and Id. people at no. the were from self-inflicted the moved legislature HD 53 from Jefferson County to Madison County, reducing by one the number of majority-black House districts in Jefferson 97 County. Hinaman then used the black Jefferson County residents living within former HD 53 to add population to the remaining majority-black districts in the area. The majority concludes that the relocation of HD 53 “provides no evidence that race predominated,” although it finds that race still predominated in the drawing of the district because of five suspicious precinct splits specific to the district’s new location County. See ante, at 206, 223-28. in Madison For the majority, HD 53’s move can be explained solely on the ground of “massive underpopulation.” Id. at 238. To the drafters, however, the tight deviation that resulted in such dramatic under-population in Jefferson County was inseparable from their mechanical view of retrogression. The drafters’ incorrect approach to retrogression meant that even Jefferson County’s majority-black districts with a population well-above 50 % black, such as HD 55 (73.55 % black) and HD 57 (68.42 % black), 98 required a massive influx of black population to avoid even the slightest reduction in the percentage of black population. The drafters appeared to be completely oblivious to the ripple effects caused by unnecessarily high requirements district--and black black completely population voters’ for oblivious actually candidates of population to necessary choice. in any the to When given level elect of black Representative McClendon was asked if he had been advised that certain percentages of minority population in specific districts would be too high and could raise concerns about packing, McClendon Dep. McClendon (doc. testified no. 125-4) that at he had 106:10-18 not. (“I haven’t been advised that if you go over a certain number [of minorities out of the total population in a district], you’re in trouble.”). testified that he “did not Senator Dial likewise consider any [black percentage] too high,” and agreed that his objective was to construct “guaranteed 99 black safe districts,” without any apparent concern about packing. Tr. Vol. I (doc. no. 215) at 56:5-12, 18-21. Jefferson County House Districts, 2001 Map, showing HD 53 at its center. Def. Ex. 480 at 2 (excerpt). 100 Jefferson County House Districts after redistricting, reflecting departure of HD 53. Def. Ex. 479 at 2 (excerpt). District-specific drafters’ districts intent with new to evidence flood black corroborates Jefferson population to County the House preserve the existing percentages: six of the eight majority-black Jefferson County House districts 101 reached a black percentage of the population within one percentage point of the target, reflecting an unmistakable pattern that stretches credulity to view as a coincidence.15 Despite these efforts to achieve mathematical precision, the record reflects not even a modest effort by the drafters to determine the actual percentage necessary for black voters in Jefferson County to have the opportunity to elect their See 52 U.S.C. § 10304(b). this analysis, they candidate of choice. Had the drafters undertaken would have concluded that black voters in Jefferson County districts would have safely maintained the opportunity to elect their candidate of choice with a lower percentage of black population, in part because whites for of the support preferred from other candidate of minorities black and voters. Lichtman Witness Summary (doc. no. 168-1) ¶ 25 & Table 15. HD 52 (+.02 %); HD 54 (+.10 %); HD 55 (identical match); HD 56 (+.01 %); HD 57 (+.05 %); HD 60 (+.27 %). Comparison of Minority Percentages (doc. no. 263-2) at 2. 102 7 (concluding, districts, as that to 55.7 % illustrative black alternative population would have maintained safe black opportunity to elect in Jefferson County).16 attempt Further, to the preserve majority-black all districts high black percentages. Plan demonstrates drafters’ of by approach Jefferson eliminating made no County’s unnecessarily The ALBC plaintiffs’ 1 % House that doing so was possible: it preserved all nine majority-black House districts in Jefferson County, including HD 53, by reducing the percentages of black population in certain districts. See ALBC Plfs. Comparison Deviations, APSX 492. of Black Percentages and For example, the plan drew HD 52 with a 56.64 % black population (instead of 60.13 % in the State’s plan); HD 55 with a 57.85 % black population (instead of 73.55 % in the State’s plan); 16. The majority previously credited Lichtman’s testimony on this subject. See Ala. Legislative Black Caucus, 989 F. Supp. 2d at 1271. 103 and HD 60 with a 53.49 % black population (instead of 67.68 % in the State’s plan). Id. Because “race was the predominant factor motivating the legislature’s decision to place a significant number of voters ... without” HD 53, it was also the predominant factor motivating the decision to place those same voters “within” the remaining majority-black districts of Jefferson County. Ala. Legislative Black Caucus, 135 S. Ct. at 1270 (quoting Miller, 515 U.S. at 916) (emphasis added). b. The State’s HD 52 (Central Birmingham) devotion to a racial convincingly demonstrated in HD 52. target is The State matched the percentage of black population nearly identically: from 60.11 % black in 2001 to 60.13 % in 2012. That feat is extraordinary in and of itself, but takes on added significance given the extent of the changes to the district. Although 104 the district was under-populated by a relatively modest 2,362 people, see District Statistics Report, Def. Ex. 406 (doc. no. 30-37) at 4--the majority-black nonetheless least Jefferson moved 19,284 under-populated of County district--the people in and out any State of the district and still achieved virtually the exact same racial proportion. House Districts Pop. Changes from 2010 to 2012, ADC Supp. Ex. 4. In other words, the drafters moved eight times more people than necessary to address under-population, and shifted a population 43 % of the size of the district’s total population (45,083) to District Statistics 30-36) at 4. accomplish its Report, racial Def. target. Ex. 403 (doc. Id.; no. The State’s quota required an additional 1,157 black people; the drafters added a net total of 1,134. House Districts Pop. Changes from 2010 to 2012, ADC Supp. Ex. 4. down would to be the This feat “represents racial sifting finest admirable level, in its 105 a racial skill exactitude if it were that not illegal.” Ala. Legislative Black Caucus, 989 F. Supp. 2d at 1330 (Thompson, J., dissenting). Nonetheless, percentage the match majority was not concludes the because “suspicious” that the alternative plans were close enough to the same racial percentage, and two proposals even reflected a higher percentage of black population than the enacted plan. See ante, distinction at 243-44. between a But district there with is a a crucial 55.64 % black population under the ALBC 1 % Plan or 57.90 % black population under the Democratic Conference Plan and the ultimately enacted population. Beyond plan the with principle a 60.13 % that black alternative plans created after the challenged redistricting shed little light on the drafters’ intent, the difference in percentages in the alternative plans--compared to the near-identical black percentage plan--belies this argument. only 0.02 % removed from in the enacted While the enacted plan was the 106 targeted percentage of black population, achieving that creates strong a a mathematical inference of precision intent, the plaintiffs’ post-remand plans were 4.47 % and 2.21 % away from demographic the target, realities in which suggests Jefferson only County led that to a result in the same ballpark. The State also used six split precincts in HD 52 to achieve the nearly identical racial percentage. The majority concludes that split precincts in HD 52 “prove nothing with respect to race,” explaining that the two precincts split majority-white between districts majority-black contain nearly and identical percentages of black population, while the remaining precincts divided between display no clear pattern. majority-black Ante, at 246. districts But the six precinct splits incorporated into HD 52 are notable not because the State used them to pack black people into existing disregard majority-black for this districts--as evidence 107 the assumes--but majority’s because, without them, the State would have been too far afield of its racial target. The State reports that unsplitting all of the split precincts in HD 52 would increase the black percentage in HD 52 from 60.13 % to 64.50 %. at Def. Precinct Split Analysis (doc. no. 263-3) 5. As another make the majority district, the has precinct difference itself splits between concluded that hitting and as to “appear[] to missing the target” contribute to a finding of racial predominance. See ante, at 247 (explaining basis for finding racial predominance as to HD 54). Because the drafters were not concerned if majority-black districts were packed with too many black people, see supra, at 99-100, the only logical inference to explain their use of split precincts to lower the black population percentage is that the committee whole were race-neutral guidelines districting that subordinated required to drafters’ racial target. 108 the principle keeping goal of and precincts meeting the As HD 52 demonstrates, the crucial improper feature of the drafters’ non-traditional significantly districts approach is districting more black (although it that criteria people may not well it used to place into majority-black have done that in certain districts), but that it used non-traditional criteria to achieve racial targets. Because the majority weighs evidence of the former but not evidence of the latter in its predominance analysis, it fails to identify clear examples of racial predominance. measure, that criteria to latter achieve approach--using a racial By any non-traditional target--was brought to bear in the drawing of HD 52. c. The story HD 55 (Northwest Birmingham) is similar in HD 55. The drafters inherited a district that was 73.55 % black, and they spit out a district that remained exactly 73.55 % black See Minority Percentages Comparison (doc. no. 236-2) at 109 2. Even though the district borders HD 52 (which has a black population more than 13 % lower than HD 55), and even though HD 55 experienced substantial geographic and population change, residents did not. its proportion of black The State managed to accomplish its racial target to a tee even though HD 55 was among the most under-populated 21.86 %) short of districts, the ideal 9,949 people population. (or District Statistics Report, Def. Ex. 406 (doc. no. 30-37) at 5. The State moved in and out 28,143 people to reach its target, with a net total of 6,967 blacks (73 %) and 730 whites (8 %) Percentages added Comparison to the (doc. district. no. 236-2) Minority at 2; House Districts Pop. Changes from 2010 to 2012, ADC Supp. Ex. 4. 110 HD 55 (2001). Map, Def. Ex. 480 at 2 (excerpt). Geographically, the HD 55 (2012). Map, Def. Ex. 479 at 2 (excerpt). new district became substantially more irregular, transformed into a thin, snake-like band that runs primarily north-south except for the addition of a portion of former HD 53 in its new southeastern corner. Map, Def. Ex. 479, at 2. HD 55 includes four precincts that had been encompassed by the former Jefferson Street HD 53 County Middle and are now majority-black School, Glen 111 Iris shared with other districts: Center Elementary School, Legion Field Lobby, and Ramsey Alternative High School. 2001 House District Precinct Splits, Def. Ex. 413, at 31; 2012 House District Precinct Splits, Def. Ex. 405, at 106-07. The State attributes the high black percentage in HD 55 to black population growth portion” of Jefferson County. no. 263) at 120. specific to “this Def. Remand Br. (doc. But the State overlooks that the new HD 55 is substantially different geographically under the 2012 plan than it was in 2001. previously extended further west While the district along the natural boundary of Birmingport Road (State Highway 269), the district’s western stretches were engulfed by HD 16 and HD 57. In addition, the southern portion of the district now extends further east into what had been HD 53. Compare 2014 Map, Def. Ex. 479, to 2001 Map, Def. Ex. 480. Of the 19 precincts that comprise the new HD 55, 12 precincts were not within the district in 2001. 2012 House District Precinct Splits, Def. Ex. 405, at 112 106-07; 2001 House District Precinct Splits, Def. Ex. 413, at 32-33. The State’s attempt to justify a race-neutral approach, like the lines of HD 55, rests on shaky ground. Because it is impossible to explain the State’s preservation of the identical racial percentage in HD 55 for reasons other than the State’s laser focus on race and because applying that percentage target significantly affected the district’s lines, I conclude that race predominated over traditional race-neutral factors in the drawing of HD 55. d. HD 56 (Southwest Birmingham) Once again, the drafters hit their racial quota nearly spot redistricting on: HD 56 was and 62.14 % under 62.13 % the black new plan. before The drafters drew a district just four black people removed from its target. entered or exited In light of the 14,241 people that the district, 113 that mathematical precision qualifies as stunning circumstantial evidence that the statewide policy was brought to bear in HD 56. The drafters shifted substantial residents in and out of the district despite its relatively manageable under-population of 4,457 people--movement of more than three times the population size necessary to cure its under-population. While doing so, the State added a net total of 2,489 blacks to the district compared to just 906 whites: 62.12 % of its new population was black, matching the district’s 62.13 % racial target almost exactly. House Districts Pop. Changes from 2010 to 2012, ADC Supp. Ex. 4. Like other districts, the Jefferson legislature County placed many majority-black black people “within” HD 56 because of the transfer of HD 53 to Madison County. S. Ct. at 1270 See Ala. Legislative Black Caucus, 135 (quoting Miller, 515 U.S. at 916). Although HD 56 was not contiguous to the former HD 53 and thus its new boundaries did not encompass any of 114 that transferred district’s residents, HD 56 swallowed many precincts from neighboring HD 52, which in turn replenished its supply from the previously contiguous, transferred HD 53. See 2012 House District Precinct Splits, Def. Ex. 405, at 99-101, 108-09; 2001 House District Precinct Splits, Def. Ex. 413, at 31; 2001 Map, APX 40 (doc. no. 60-26); 2012 Map, APX 41 (doc. no. 60-27). The majority alternative makes plans drawn much by the of the fact plaintiffs that appeared geographically similar to the enacted HD 56, while the proposed black percentages fell within four points of the enacted plan. some weight to See ante, at 260-61. the alternative Even according plans, there is a difference at the magnitude of 100 between the enacted plan, which falls 0.01 % away from the target, and the alternative plans, with even the tightest fit falling 1 % away from the target. One plan and one plan only--the State’s--demonstrates remarkable proximity to 115 a racial target; the alternative plans, even if in the same ballpark, are not so precise “unexplainable other than by race.” that they are Miller, 515 U.S. at 917. The majority and I agree that the compactness of HD 56 are not suspicious. shape and We also agree that the manmade boundaries apparently used to split the Hunter Street Baptist Church precinct, see Precinct Map, APSX likewise 114, relied demonstrate on by the another ALBC valid plaintiffs, race-neutral criterion that defines at least some of the district’s boundaries. See Katherine Inglis Butler, Redistricting in a Post-Shaw Era: A Small Treatise Accompanied by Districting Guidelines for Legislators, Litigants, and Courts, 36 Univ. Rich. L. Rev. 137, 218 (2002) (“[P]recinct boundaries generally correspond to known landmarks and encompass reasonably compact geographic areas.”). Nonetheless, HD 56’s four split precincts allowed the district to hit its racial target: 116 without doing so, the district would have been 61.34 % black, or 0.79 % above the target. Def. Analysis (doc. no. 263-3) at 9. Precinct Split Splitting precincts allowed the drafters to minimize that discrepancy to an almost unnoticeable 0.01 %. The plaintiffs have established that the State matched its target racial percentage while addressing significant under-population, in the process shifting many more people within and without the district than necessary. This provides sufficient evidence that race had a “direct and significant impact” on the drawing of HD 56’s boundaries. Ala. Legislative Black Caucus, 135 S. Ct. at 1271. e. HD 57 HD 57 (West Birmingham) provides yet further evidence of the drafters’ success at reaching their racial target in Jefferson County following the transfer of HD 53. With a racial target of 68.42 %, the State managed to enact 117 a plan with a 68.47 % black population in the district, leaving it just 20 black people over an exact match. District Statistics Report, Def. Ex. 406 (doc. no. 30-37) at 5; District Statistics Report, Def. Ex. 403 (doc. no. 30-36) at 5. under-population of population, 20.48 % District or Statistics 30-37) at 5. The drafters did so despite 9,322 people of Report, the Def. below entire Ex. 406 the ideal district. (doc. no. To accomplish those goals, the drafters moved 21,590 people in and out of the district. House Districts Pop. Changes from 2010 to 2012, ADC Supp. Ex. 4. 118 HD 57 (2001). Def. Ex. 480 at 2 (excerpt). HD 57 (2012). Def. Ex. 479 (excerpt). Geographically, HD 57 had been compact under the old plan, but the drafters constructed an elongated district that runs north and south adjacent to and to the west of HD 55. See Map, Def. Ex. 479. the district appears occurring landmass new naturally something of the In shape, akin United to the Kingdom, with southwestern portions alternately jutting into and away from majority-white HD 15 (instead of toward Ireland), and a southeastern tip that extends so far 119 east it might have obviated the need for the Channel Tunnel. I do not agree with the majority that its shape remains “compact” and is “not suspicious,” see ante, at 266-67, a criterion required under the guidelines. Reapportionment Comm. Guidelines (doc. no. 30-4) 3 at Constitution, (requiring, that pursuant “[e]very to district Alabama should be compact.”). The weight majority to the percentage, notes “almost focusing but accords little, unchanged” its black attention if any, population instead on alternative plans that purportedly prove the resulting percentage is not suspicious. Were my analysis to focus on alternative plans, I would reach the opposite conclusion: the State’s plan (at 68.47 % black) met its target (68.42 %) so precisely while the alternative plans fell several percentage points away (72.51 % and 66.1 %), providing strong evidence predominated in the State’s plan. 120 that race Comparison of New Plans with 2012 Plans, Def. Supp. Ex. 64 (doc. no. 296-1) at 2. The used majority to discounts construct Pleasant Grove HD 57, First the including Baptist majority-white HD 15. five precinct a Church splits split of precinct the with Through this split, the drafters placed a 51 % black population in majority-black HD 57 and a 22 % black population in majority-white HD 15, but the majority non-problematic found because that the racial split was allocation accomplished through a “relatively smooth J-shaped line.” 269. Ante, at The reapportionment committee’s guidelines do not support that result: valid criteria include respecting “voting precinct boundaries,” Reapportionment Comm. Guidelines (doc. no. 30-4) at 3-4, but does not include an exception if those boundaries can be split through smooth lines. although Accordingly, race-neutral, legislative was redistricting because “not this mentioned guidelines,” 121 criterion, it in the may not factor into our analysis. Caucus, 135 S. Ct. at See Ala. Legislative Black 1271-72. In any event, regardless of whether the split was “smooth” or not, the State’s neglect of a race-neutral criterion (keeping precincts whole) had a sizeable effect on the racial composition of the district. Further, had the State not split any precincts, HD 57 would have been 66.59 % black, almost two percentage points below its goal. Def. Precinct Split Analysis (doc. no. 263-3) at 10. Although dispositive, these they precinct provide splits further are not circumstantial evidence of the drafters’ racial intentions. The State’s only attempt to offer a race-neutral explanation for HD 57 pointed to a map of the district’s 2001 lines in McClendon’s notebook, which includes hand-drawn lines sweeping two new areas into the district. 125. See McClendon Notebook, Def. Ex. 459, at According notebook to generally, McClendon’s the testimony hand-drawn 122 about additions his could reflect input from incumbents.17 The State, noting that the a resulting percentage of district black had “slightly population than higher” “Hinaman’s so-called target,” Def. Remand Br. (doc. no. 263) at 122, apparently suggests that Hinaman would have met a racial target exactly but feedback from legislators. for the interjection of That the State’s technical adviser would have hit the racial target precisely by default only from--the central formulation because further of the role the final demonstrates--not that district’s district race played lines. At population detracts in any the rate, fell a statistically insignificant 20 black people above its target, this justification is unconvincing. 17. McClendon Dep. (doc. no. 125-4) at 78:2-16 (testifying that his notebook contained drawings made by incumbent legislators reflecting requested changes to districts). McClendon did not testify specifically about the drawing for HD 57. 123 Accordingly, I conclude that race predominated in the drawing of HD 57. f. HD 60 HD 60 (North Birmingham) provides further proof that Hinaman’s transfer of HD 53 out of Jefferson County allowed the State to meet its racial targets in Jefferson County. The State drafted a district approximately one-quarter percentage that had point been over 67.41 % black (+0.27 %). its target, black and taking leaving a it district 67.68 % Especially when considered in light of the drafters’ need to add 8,817 people to meet its ideal population target (19.37 % of the total district population), this feat is impressive. District Statistics Report, Def. Ex. 406 (doc. no. 30-37) at 5. This otherwise district is an outlier inefficient under-population dilemma: in resolution it efficiently the State’s of moved its only 9,170 people in or out of the district despite adding 124 8,380 people to address under-population. House Districts Pop. Changes from 2010 to 2012, ADC Supp. Ex. 4. But that apparently aberrational approach can be explained because the drafters quite simply tacked on a southeastern tip to the district that had previously belonged to HD 53, resulting in an irregularly shaped district that population. previously snakes south to encompass See Map, Def. Ex. 480. discussed, the more black For the reasons displacement of former residents of HD 53 to meet the State’s incorrect view of § 5 retrogression provides substantial evidence that race predominated in the surrounding Jefferson County districts, including HD 60. 125 HD 60 (2001). Def. Ex. 480 at 2 (excerpt). Although the HD 60 (2012), reflecting new southeastern tip from former HD 53. Def. Ex. 479 at 2 (excerpt). drafters split 11 precincts to construct HD 60, the majority analyzes only the two precincts split between the district and majority-white districts, ignoring the nine precincts split between majority-black analysis separately, districts. considers it Because those concludes 126 two that the majority’s precinct the splits effect was negligible. See ante, indicated, however, precincts, HD 60 at that would 277-78. had have it not been than 5 % above its racial target. Analysis (doc. no. Gardendale Civic troubling: the 263-3) Center at The 72.5 % any has split black--more Def. Precinct Split 13. The precinct drafters used State placed is a split of particularly 47.3 % black population in majority-black HD 60 but only a 6.1 % black population in majority-white HD 51, carving out a small sliver at the southern end of the precinct to include in HD 60. 2012 House District Precinct Splits, Def. Ex. 405, at 98, 116; Map, APSX 108. split precincts, including those split The use of with other majority-black districts, contributes to an inference that race predominated in HD 60. 127 Gardendale Civic Center Precinct, reflecting small sliver added to HD 60 in orange. Map, APSX 108. The State suggests that HD 60 passes constitutional muster because it preserved the core district and protected its incumbent. (doc. no. 263) at 125. of the old Def. Remand Br. The first justification, core preservation, “is not directly relevant to the origin of the new district inhabitants,” 128 Ala. Legislative Black Caucus, preclude a protecting 135 S. Ct. predominance the at 1271, and finding. district’s core thus cannot any rate, At cannot explain the addition of an irregularly shaped southeastern tip with heavily-black census blocks from the former HD 53, see Maps, ADC Supp. Ex. 16B & 16C, which resulted from the State’s decision to shift population among Jefferson County majority-black House districts to meet its equal-population goals consistently with its approach to retrogression. As to the State’s asserted race-neutral justification of incumbency protection, the evidence in the record gives no indication that anything about that goal was unique approach to HD 60. or predominated in the drafters’ The incumbent’s residence in the mid-central portion of the district, a portion of the district cannot which explain remained constant HD precise 60’s from match the to 2001 the map, racial target, the use of 11 precinct splits, or the addition 129 of an irregularly shaped from the former HD 53. southeastern tip swallowed See House Addresses, Def. Supp. Ex. 1; 2014 House Districts Map, Def. Supp. Ex. 2. Because the plaintiffs have advanced sufficient evidence suggesting racial predominance that cannot be explained on race-neutral grounds, I find that race predominated in the drawing of HD 60. ii. West Black Belt (SD 24 and HDs 67 and 69) Direct evidence Belt specific Western Black equated under-population to establishes in districts that the majority-black in the drafters districts with the need to add heavily-black population to the districts. Beyond direct evidence, the majority fails to place appropriate weight on circumstantial evidence that the State’s racial policy was brought to bear in these districts, mathematical meeting precision and racial targets unnecessarily with splitting counties and precincts in search of new heavily-black 130 population to add to the district. I conclude that race predominated For these reasons, in the drafters’ approach to SD 24, HD 67, and HD 69. a. SD 24 (Choctaw, Clarke, Green, Hale, Marengo, Pickens, Suffolk, and Tuscaloosa Counties) Overwhelming direct and circumstantial evidence reflects the State’s use of race to draw SD 24: the drafters said they were targeting a racial percentage for the district, and they in fact met that target. light of majority’s this direct analysis evidence, that the I disagree with the racial-predominance inquiry in this district requires a “close call.” ante, at 130. In See In fact, the State’s direct evidence has made our job quite easy. See Shaw II, 517 U.S. at 906 (placing substantial weight on “direct evidence of the legislature’s objective”). Discussing SD 24’s under-population, Dial testified that it “had to have more minorities.” 131 Tr. Vol. I (doc. no. 215) at 48:19-23. Just like Hinaman’s decision to move HD 53 from Jefferson County because of his conclusion that under-population in majority-black districts could only be remedied by adding more black population, that he racial Dial’s also testimony correlated composition of serves as an under-population the residents admission with the purportedly required to address the under-population.18 In addition, Senator Marc Keahey, the incumbent for neighboring SD 22, offered uncontroverted testimony that Dial’s mechanical view of retrogression limited the options for drawing SD 24’s boundaries.19 Dial 18. No such automatic correlation was necessary. Had the drafters addressed SD 24’s under-population without adding a single black person to the district, it would have remained a majority-black district at 54.63 % black. ADC Remand Br., Table 1 (doc. no. 258) at 21. 19. Keahey’s testimony was previously credited by the majority. See Ala. Legislative Black Caucus, 989 F. Supp. 2d at 1260. 132 would consider any amendments proposed by Keahey under two criteria: first, affected incumbent senators agreed to the amendment, and, second, the amendment would not retrogress the understood minority Dial to mean population, lowering by by which any Keahey amount the percentage of black population in the district from the level of the 2000 census used to draft the 2001 lines.20 Tr. Vol. proposed, I (doc. among no. 215) other at 192:2-24. amendments, Keahey smoothing the southern boundary of SD 24 at the Marengo County border so that it did not extend into a portion of Clarke County--a recommendation consistent with the committee’s guidelines of keeping counties whole. Id. at for 199:24-25 – 200:1-4. The incumbent senator affected SD 24 agreed to the amendment, meeting the 20. As other testimony established, the drafters’ concept of retrogression looked at 2010 census data applied to the 2001 lines. See, e.g., Tr. Vol. III (doc. no. 217) at 222:8-12. 133 first of Dial’s two stated criteria for approval, but Dial rejected it because of race: he stated that it would retrogress 198:2-5, majority-black 200:7-8. Keahey later districts. learned Id. that at Dial’s understanding of retrogression measured a reduction in the black population using 2010 census data applied to the 2001 lines, consistent with overwhelming evidence of the statewide policy. Dial rejected the Id. at 198:8-15. proposal understanding now-discredited incumbent’s of Because based on his retrogression, Keahey’s testimony provides direct evidence that the statewide policy was brought to bear in SD 24. The majority agrees that the testimony of Dial and Keahey shows that the drafters “considered race in the drafting that of the the district” evidence predominance. “considered significantly but falls short Ante, at 133. race” when more black nonetheless of concludes establishing But because the drafters solving people 134 under-population, were added to the district than white people (23,241 compared to 19,606), while significantly more white people were removed from the district compared to black people (14,099 compared to 10,828). motivated Because the drafters’ admitted use of race the movement of “a significant number of voters within or without” the district, the testimony strongly supports a predominance conclusion. Ala. Legislative Black Caucus, 135 S. Ct. at 1267 (quoting Miller, 515 U.S. at 916). By the time redistricting, goal: SD 24, the the legislature drafters which had had been had completed accomplished 62.78 % their black when applying the 2010 census to the old lines, stood at 63.22 % black, just 0.44 % above the target. Comparison of Minority Percentages (doc. no. 263-2) at 4. At trial, Hinaman boasted that, although SD 24 had been severely under-populated, it was ultimately “very close to getting back to the identical numbers that [it was] 10 years ago,” by which he meant identical “[b]y 135 total black percentage.” Tr. Vol. III (doc. no. 217) at 186:19-25 – 187:1. SD 24 and its eight counties, six of which were split. Map, Def. Supp. Ex. 5. By adding a northern portion of Clarke County and a southwestern portion of Pickens County to SD 24, the drafters violated the traditional districting criterion of keeping counties whole. Although the State maintains that changes to the district lines “largely resulted from the wishes of incumbent senators in the 136 area,” Def. Remand Br. (doc. no. 263) at 70, it offered no evidence disputing Keahey’s testimony about rejected request pertaining to Clarke County.21 his The State argued merely that it needed to add slivers of Clarke and Pickens Counties because of under-population and geographically mandated limitations, since the district faced Mississippi on its western border and under-populated SD 23 on its eastern border. Merely addressing under-population does not explain the substantial racial disparities in those portions of the counties added to SD 24. In Pickens County, which had previously belonged wholly to majority-white SD 21, the State added 7,303 people, of whom 74.01 % were 21. Although the State maintained that the drafters’ approach to Clarke County was constrained by an incumbent residing on the boundary of SD 22 and SD 23, the incumbent’s residence was swallowed up by SD 23 in a southern portion of the State far removed from the portion of the county added to SD 24. 2014 Senate Map, Def. Supp. Ex 5; Map, Def. Ex. 476. Thus, the incumbent’s location had no effect on SD 24’s boundaries. 137 black, to SD 24. District Splits, Def. Ex. 401 (doc. no. 30-40) at 8. It kept the northern and eastern portions of Pickens County--which just so happened to contain a 75.00 % white population--in majority-white SD 21. Id. at 7. The majority dismisses this racial division because the shape of the SD 24 portion of Pickens County is tied to the western border of the State and has a “relatively smooth line” to the Greene County border, ante, at 136, but the State did not describe these race-neutral explanations as its “actual purpose,” see Shaw II, 517 U.S. at 908 n.4. Instead, the evidence shows that the State specifically intended to add black population: Dial testified that SD 24 “had to have more minorities, and so [it] had to grow as well,” so it “grew up into referring to Pickens County. at 48:19-25. line’ creates overcome the the north district,” Tr. Vol. I (doc. no. 215) To the extent that creating a ‘smooth a race-neutral plaintiffs’ 138 inference, direct it evidence cannot that traditional districting factors were “subordinated to racial objectives.” In Clarke Miller, 515 U.S. at 919. County, which had previously belonged solely to majority-white SD 22, the drafters added a 61.13 % black northern slice to SD 24 and a 70.67 % black southeastern section to majority-black SD 23 while preserving in majority-white SD 22 a portion of the county that was only 22.02 % black. District Splits, Def. Ex. 401 (doc. no. 30-40) at 7-9. State’s addition of heavily black portions of The split counties to majority-black SD 24 without a race-neutral explanation provides further substantial evidence that race predominated over traditional districting Precinct splits tell a similar story. Although the criteria. 21 precinct splits in SD 24 do not in and of themselves demonstrate that race predominated, several are quite striking. In particular, in two Choctaw County precinct splits with majority-white SD 22, the State 139 placed hundreds of the precinct’s black residents in SD 24 but not a single one in SD 22. See District Splits, Def. Ex. 475, at 88, 109; Precinct Map, APSX 291 (split of Silas-Souwilpa-Isney-Toomey precinct with 850 blacks and 818 whites placed in SD 24, but no blacks and 237 whites in SD 22); Precinct Map, APSX 290 (split of Riderwood-Rock Springs precinct with 335 blacks and 339 whites placed in SD 24, but no blacks and 43 whites in majority-white SD 22). The majority concludes without explanation that it could find “no racial pattern” in the Silas precinct split, ante, at 145, but splitting a precinct by placing black people on only one side of the line seems an obvious racial pattern to me. 140 Silas-Souwilpa-Isney-Toomey precinct, which added significant black population to SD 24 but no black people in the irregularly-shaped portion drawn in majority-white SD 22. Precinct Map, APSX 291. Moreover, these stark racial divisions cannot be explained solely attempts to do. by under-population, as the State SD 24 was 17,732 people short of the ideal population target; in redistricting, the State moved 70,988 people in and out of the district--four times the number of people 141 necessary to address under-population. Pop. Summary Report, Def. Ex. 402 (doc. no. 30-41) at 1; Senate District Pop. Changes from 2010 to 2012, ADC Supp. Ex. 5. Combined with the stark racial divisions in the new geographical areas added to address explanation under-population, cannot overcome a this race-neutral finding that race predominated in drawing SD 24. b. HD 67 (Dallas and Perry Counties) I agree with much of the majority’s conclusions as to HD 67, but not the ultimate one. I find that race predominated in the State’s drawing of this district because of sufficient circumstantial evidence that the State’s racial target “motivate[d] the legislature’s decision to place a significant number of voters within or without” the district. Ala. Legislative Black Caucus, 135 S. Ct. at 1267 (quoting Miller, 515 U.S. at 916). The district was 69.14 % black after the 2010 census; by adding just the right amount of Perry County 142 that would address both under-population and its racial target, the 69.15 % black. factor drafters State alone hit achieved Race [that] HD 67’s is a the explains target new district “[o]ne the so that was and one that” the factor fact precisely, and is sufficient to establish that race predominated. Ala. Legislative 1325 Black Caucus, 989 F. Supp. 2d at (Thompson, J., dissenting). HD 67 (2001). Map, Def. Ex. 480 at 1 (excerpt). HD 67 (2012). Map, Def. Ex. 479 at 1 (excerpt). As the majority explains, HD 67 fit entirely within Dallas County under the old lines. 143 Most of Dallas County belonged to HD 67, with approximately 13 % of the county’s population in neighboring, majority-black HD 69. 2001 District Splits, Def. Ex. 412, at 7. The drafters moved all Dallas County residents to HD 67, serving county the race-neutral whole. population principle Nonetheless, guidelines, the with district of keeping the the new ideal remained 1,701 people short of the ideal population target. District Statistics Report, Def. Ex. 403 (doc. no. 30-36) at 6; County District Splits, Def. Ex. 404, at 15. Needing to move beyond Dallas County’s borders, the drafters added 1,258 residents from Perry County (59.54 % of whom were black), a rural Black Belt county that had previously been encompassed entirely by majority-black HD 72. County District Splits, Def. Ex. 404, at 16. To do so, the drafters added six precincts from Perry County, four of which were split. Precinct Splits, Def. Ex. 405, 2012 House District at 135-36. The drafters’ final HD 67 remained 443 people short of its 144 equal-population target (but within the -1.00 % allowable deviation), but just three black people above an exact match to its racial target. District Statistics Report, Def. Ex. 403 (doc. no. 30-36) at 6. That uncanny match provides strong circumstantial evidence that race predominated in the drafters’ exact placement of the Perry County boundary of HD 67. The majority criticizes my reliance here on circumstantial evidence that the State met its racial target, see misreads the ante, at Supreme 285-86; however, Court’s the majority instruction that a statewide policy of racial targets “provides evidence” that race motivated the drawing of a district’s lines, Ala. Legislative Black Caucus, 135 S. Ct. at 1267, as a prohibition on finding racial predominance where there is direct evidence that the State set a racial target and circumstantial precisely in a evidence particular that it district. met the As target I have explained, where the State sets a high racial target 145 (here, a 69.14 % black population), applies it with strict constraints (there must not be too many black people above the target, nor too few black people below the target), and does so as part of a rigorous intent to reach as many majority-black districts as possible (this is one of the 16 districts for which the drafters hit their racial target within one percent), that qualifies as strong evidence of racial predominance. Nevertheless, I agree with the majority that race did not predominate in 12 districts in large part because this circumstantial evidence does not apply in those districts. I agree with the majority that race-neutral criteria explain some of HD 67’s boundaries, but not so much to negate the conclusion that race predominated over traditional districting criteria in the district as a whole. to use The State had valid, race-neutral reasons Perry contiguous County as majority-white opposed county, 146 to a as portion some of of a the plaintiffs’ could alternative conjoin two plans Black proposed, Belt counties, so that a it coherent community of interest, into a single district.22 Nonetheless, unexplainable several on line-drawing race-neutral decisions grounds. Maps are at the precinct level along the border with HD 72 demonstrate that the State could have made boundary choices that would have resulted Precinct Map, Precinct Map, Similarly, drawn with the in APSX 245 APSX247 new several smoother lines. (National (UCH uneven majority-black populations. Guard Airport territory from See, Armory Perry tentacles that e.g., Armory); split). County swept was in Map, ADC Suppl. Ex. 17C. The State could have drawn an equally compact district with more or less of Perry County, but it instead drew 22. The analysis might be different if the plaintiffs had a § 2 claim based on packing too many black residents into HD 67, but such a claim is not currently before the court. 147 the line to match its racial target exactly. This satisfies the racial-predominance standard. c. HD 69 (Autauga County, Lowndes County, Montgomery County, and Wilcox County) Once again, I find that race predominated primarily based on evidence a of “negligible” disagreement racial suspicious, targets. increase population--from with of 64.16 % apparently the To the to the the about majority, percentage 64.21 % because majority of black black--is drafters the not did not place a noticeably higher percentage of black people within the Percentages district. (doc. no. Comparison 263-2) at 2. of But Minority the State unquestionably used race to place people “within” the district according to a target, and that supports the plaintiffs’ showing of racial predominance. 515 U.S. evidence at of 916. hitting As a I previously racial 148 target Miller, observed, is this particularly convincing not district, but only because because challenged districts. it it happened occurred in in 21 this of the This obvious pattern provides clear evidence that race predominated. In HD 69, under-population although to the remedy State (7,949 had substantial people), it swept with a much broader brush than necessary, moving in and out 24,373 people--more population. than half of the district’s District Statistics Report, Def. Ex. 406 (doc. no. 30-37) at 6; House Districts Pop. Changes from 2010 to 2012, ADC Supp. Ex. 4. Most notably, the State’s shuffling removed heavily white rural precincts and added majority-black urban districts. The State removed several Autauga County precincts, even though this county was already split, and added portions of heavily-black Montgomery County. Autauga County’s Billingsley The drafters removed Government Center and White City Fire Station precincts from HD 69, a total of 2,161 people that were 149 only 14.48 % black, and placed them in majority-white HD 42, which was already 6.19 % over-populated. ADC Ex. W, C-41 (doc. no. 140-2) at 84-85; 2001 House District Precinct Splits, Def. Ex. 413, at 43; District Statistics Report, Def. Ex. 406 (doc. no. 30-37) at 4. To fill HD 69’s population gap, the drafters added 15,190 people from urban Montgomery County, 60.45 % of whom were black, to this otherwise demonstrates rural that district. the State Direct merely evidence assumed that re-population of a majority-black district required the addition black. to of new that was also majority Hinaman testified that “it would have been hard [repopulate County] population HD without 69 without eliminating going another into Montgomery black district,” Tr. Vol. III (doc. no. 217) at 160:4-5, but then said he did not population district. know from what other prevented counties Id. at 161:4-6. 150 to him from re-populate using the Nor could the State demonstrate that the ADC plaintiffs’ alternative, which would have repopulated HD 69 with rural population from the less heavily majority-black Butler County, was unworkable. Tr. Vol. III (Hinaman (doc. no. 217) at 160:12-25 - 161:1-6 stating “[t]here may be no impediment to [using Butler County], but I don’t know that--I did not do--you know, I don’t know if those numbers work out or not.”). State suggests that it needed to use The Montgomery County’s heavily-black population to re-populate HD 69 or else it risked losing a majority-black district, but in contiguous HD 90, Butler County’s heavily-black population was drawn into majority-white HD 90. State’s generalized assertion that it had The limited options in its pursuit of population for HD 69 because of rural under-population throughout the Black Belt districts carries little weight when it cannot explain its failure to use specifically proposed alternatives. 151 The drafters’ extension of HD 69 into Montgomery County also relied on a land bridge accomplished with precinct splits that even the majority acknowledges is “suspicious.” Ante at 320. The Snowdoun Womens Club precinct splits HD 69 and majority-white HD 75. Precinct Map, APSX 239. If one were to See look at precinct-specific demographics alone, the split seems race-neutral: it resulted in 51 whites and three blacks in majority-black HD 69, no whites and three blacks in majority-black HD 76, and 202 blacks and 493 whites in majority-white HD Splits, Ex. Def. 75. 405, 2012 at House 145, District 158, Precinct 160. More consequentially, the split precinct map shows that the split--along with a further Fitzpatrick Elementary split School in the contiguous precinct--allowed the drafters to append a highly-irregular land bridge to the easternmost end of HD 69, which facilitated the inclusion of significant black census blocks from the urban Peter Crump School precinct. 152 Precinct Map, APSX 239. By doing so, the drafters were able to add an additional 1,701 people to HD 69, nearly all (95.47 %) of whom were black. at 146. ADC Ex. W, C-41 (doc. no. 140-2) This serves as “quite compelling” evidence that the borders of HD 69 are “unexplainable other than by race.” Miller, 515 U.S. at 917 (holding that “drawing of narrow land bridges to incorporate within the district outlying appendages ... considered in conjunction with its racial and population densities” provides evidence of racial gerrymandering).23 23. Although the majority suggests the large hook extending into Montgomery County, which encompassed this land bridge, was required to avoid the HD 78 incumbent’s Montgomery residence, it cannot explain the drafters’ need to add a small but concentrated pocket of black people from Montgomery County to HD 69. Only race can do that. The additional 1,701 mostly black people gained from the Crump precinct is very close to the 2,161 mostly white people the State extracted from the Autauga County precincts. In other words, if the State did not unexplainably remove predominantly-white population from HD 69, it would not have needed to use a suspicious land bridge into Montgomery County at all. 153 Precinct splits used to build land bridge to scoop majority-black census blocks from the Peter Crump School precinct into HD 69. Precinct Map, APSX 239. Because the drafters met a racial target while disregarding race-neutral criteria, I find that race predominated in drawing HD 69. 154 iii. HD 83 (East Black Belt: Lee and Russell Counties) Race predominated in the drawing of HD 83 because the State shifted a significant number of voters in and out of the incorporate district, the split majority vast used of precincts the to district’s residents and exclude portions of precincts with high percentages target. of white population, and met its racial With a 56.92 % black target, the State drew a district 57.52 % black (+0.60 %), just 277 black people short of an exact match. To accomplish that, the State moved 18,466 people in and out of the district, even though the district was only under-populated by 4,482 people. House Districts Pop. Changes from 2010 to 2012, ADC Supp. Ex. 4. The majority acknowledges that two precinct splits appear “suspicious,” but disregards them because they “do not account for the assignment of a significant number of people.” Ante, at 396. The majority assesses the affected population as “less than half of 155 a percent of the total population of the district,” but it counted only black people within one of the splits, the Ladonia Fire Department precinct, see ante, at 398. Because the precinct splits also facilitated the placement of a significant white population “without” HD 83, that population must be taken into account as well. Miller, 515 U.S. at 916. Specifically, the Ladonia Fire Department precinct placed an 85.9 % black population population into into HD 83 but only majority-white HD a 80, 12.5 % while black the Old Salem School precinct added a 42.3 % black population to HD 83 but majority-white Splits, Def. only HD Ex. an 38. 405, 8.9 % 2012 at black House 78, 166, population District 172. to Precinct The high proportion of black population added to HD 83 appears particularly previously districts. suspicious been wholly because both encompassed by precincts had majority-white 2001 House District Precinct Splits, Def. Ex. 413, at 24, 49. Combined, the two precinct splits 156 allowed the State to place an additional 204 black people into majority-black HD 83 while retaining 7,541 white people in majority-white districts, equivalent to 16 % of HD 83’s total population. 2012 House District Precinct at Splits, Def. Ex. 405, 172-73. That population rises to the level of a “significant number of voters” placed without the district on account of race. See Miller, 515 U.S. at 916. Indeed, another three-judge panel concluded that 0.58 % of a district qualified sufficient as a to “significant establish number racial of voters” predominance. Covington, 316 F.R.D. at 149 n.28 (three-judge court). Similarly, the split of Opelika B precinct allowed the State to place a large, overwhelmingly black population in HD 83 and a large, overwhelmingly white population in majority-white HDs 38 and 79. The drafters placed 18,201 people into HD 83, 58.81 % of whom were black, and 9,598 people into majority-white districts, only 10.58 % of whom were black. 157 2012 House District Precinct Splits, Def. Ex. 405, at 78, 165, 172. into The HD placement 83 of accounts majority-black for the northwestern limb of the district. odd census shape blocks of the Precinct Maps, APSX 140 & ADC Supp. Ex. 27F. Opelika B precinct split between majority-black HDs 82 and 83 and majority-white HDs 38 and 79. Census blocks with a majority-black population are shaded in green. Precinct Map, APSX 140 (excerpt). 158 The State pattern in showing suggests that population the Opelika a was that large B an inconsistent precinct proportion allocated split of according the to racial negates a precinct’s race, but the supposed inconsistencies are in fact consistent with the drafters’ statewide approach to racial targets. In contrast to the heavily black population added to HD 83, the drafters placed a largely white portion of the precinct into majority-black HD 82 (2,140 people total, only 19.44 % of whom were black). 2012 House District Precinct Splits, Def. Ex. 405, at 171. But extending HD 82 to the majority-black census blocks of that part of the precinct--not contiguous to the majority-black census blocks of the precinct included in HD 83--would have placed population HD 82 target. well over Id.; the Precinct +/Map, 1 % APSX ideal 140. Unlike many of the other majority-black districts, the drafters had already exceeded the ideal population of 159 HD 82 with a deviation 0.74 % above ideal. District Statistics Report, Def. Ex. 403 (doc. no. 30-36) at 7. A racial-predominance showing that finding the does drafters not require utilized a racial considerations to the maximum extent possible; it only requires a showing that race predominated over other, race-neutral criteria.24 In addition to the three already mentioned precincts, the drafters split eight other precincts in HD 83. In all, a substantial 75.7 % of the district’s population resides in split precincts. 2012 District Precinct Splits, Def. Ex. 405, at 172-73. district also shares its two counties with House The numerous 24. Further, because the predominance inquiry must focus on the drafters’ intentions when drawing district lines, I place little weight, unlike the majority, on the somewhat similar district boundary reflected in the ADC’s plan. ADC Alternative Plan Map (doc. no. 287-18) at 9. The record provides no indication that the alternative plan, which reflects some variation from the State plan, had any effect on the racial split in the heavily populated Opelika B Voting Precinct. 160 other districts, ignoring the guideline to keep counties whole; it shares parts of both Lee and Russell Counties with three other districts. The State contends that HD 83 was drawn in a race-neutral manner because it “preserves the core of the former district” and “is compact.” (doc. no. envision at this comprising various 263) five 153. While odd-shaped different irregular it Def. Remand Br. is district, ‘legs’ points, as that compact, difficult to essentially jut out the at State accurately notes that the shape, driven by the need to join the population centers of Opelika and Phenix City, does not vary significantly from its 2001 lines. With that said, the plaintiffs have established that where the drafters needed to add population, they did so in a race-conscious manner, selectively extending the boundaries of the district to include majority-black census blocks. For example, in a north-central limb, the drafters extended the length of the limb further 161 north into Lee County by drawing boundaries closely tailored to several majority-black census blocks. Precinct Maps, ADC Supp. Ex. 27C & 27D. HD 83. Map, Def. Ex. 479 (excerpt). New north-central limb of HD 83 reflecting addition of heavily-black census blocks. Map, ADC Supp. Ex. 27C. 162 See For all of these reasons, I must conclude that race predominated in the design of HD 83. iv. HD 97 (Mobile County) The drafters hit their racial target on the head in Mobile County’s HD 97, retaining the previous 60.66 % black population Percentages (doc. exactly. Comparison no. at 263-2) 2. of Minority Tellingly, the State accomplished this feat despite adding a net total of 9,665 people, addressing a district that had been 22.22 % under-populated. District Statistics Report, Def. Ex. 403 (doc. no. 30-36) at 8; District Statistics Report, Def. Ex. 406 (doc. no. 30-37) at 8. The State offers no explanation for achieving this exact racial match using race-neutral methods, and the majority apparently does not take this precision into account.25 25. The State argued that “all [majority-black Mobile County House districts] have a lesser percentage of black population than Hinaman’s alleged target.” (continued...) 163 The exact racial match provides strong circumstantial evidence that the drafters pursued the statewide policy in HD 97. The plaintiffs have demonstrated, and the State has not rebutted, that race, and not an equal-population objective, drove the drafters to meet HD 97’s racial target. For example, under-populated State’s by allowable the 0.99 %, redrawn just HD 97 barely minus-one-percent remained meeting total the population deviation. District Statistics Report, Def. Ex. 403 (doc. 30-36) no. at 8. Neighboring HD 96, a majority-white district, was over-populated by 0.99 %, just barely total meeting population the allowable deviation. Id. plus-one-percent Nonetheless, the northernmost tip of HD 97--referred to by the majority as the “bishop’s mitre”--was drawn in a highly irregular shape through a racially divided split of the Def. Remand Br. (doc. no. 263) at 159. course, incorrect as to HD 97. 164 This is, of Saraland Civic Center Precinct, avoiding majority-white census blocks that were instead drawn into HD 96. Had the State prioritized compactness, it could have added additional majority-white census blocks from HD 96 into HD 97 to smooth out the district’s shape and bring both districts closer to the ideal population target. Precinct Map, APSX 197. See Of course, had the State added additional majority-white census blocks to HD 97, it would not have hit the racial target. The State offered no explanation for its apparent prioritization of a racial target above regularly-shaped lines and its ideal population target. district Instead, it noted only that the Saraland precinct split added more whites than blacks to the district. Def. Remand Br. (doc. no. 263) at 160-61. But where the resulting district exact has achieved an racial match, a suspicious precinct split provides evidence of racial predominance even if it allocated blacks to a majority-black district. 165 more whites than Saraland Civic Center precinct split. Map, APSX 197. The same principle holds true for the district as a whole. The State’s unsplitting exercise demonstrates that, had it not included a single precinct split in HD 97, its majority-black population would have increased to 64.8 % of the total population. Def. Precinct Split Analysis (doc. no. 263-3) at 28. Given the testimony of the principal architect for the House districts that he had not “been advised that if you go over a certain 166 [percentage of minority population]” it would be a problem, see McClendon Dep. (doc. no. 125-4) 106:10-18, the use of precinct splits to reduce the percentage to a result identical to the racial target strengthens the conclusion districting that race predominated principles, over including traditional keeping precincts whole. Because the plaintiffs demonstrated that the drafters applied a racial target to the drawing of HD 97 and disregarded race-neutral criteria to do so, I conclude that race predominated. C. Strict Scrutiny As I have concluded that race predominated over traditional districting criteria when the State drafted ten additional districts, I must also determine whether the districts would survive strict scrutiny. my racial-predominance analysis determined Because that the drafters applied a statewide policy of reaching racial 167 targets for each of the ten identified districts, I also conclude, for the reasons explained above, that the State did not narrowly tailor its use of race in these districts. See supra at 39-50. Moreover, the State has not submitted evidence or arguments specific to the burden identified of tailored. districts showing that sufficient its approach to carry was its narrowly Accordingly, I conclude that, although the State had a compelling interest in complying with § 5 of the Voting Rights Act, its approach to SD 24 and HDs 52, 55, 56, 57, 60, 67, 69, 83, and 97 was not narrowly tailored to meet that interest and therefore could not survive strict scrutiny. III. Twelve Remaining Districts In addition unconstitutional and the to racial additional plaintiffs have 12 the 12 districts gerrymanders I sought deem to 168 by the deemed majority unconstitutional, establish that the race predominated in the State’s drawing of an additional 12 majority-black districts. districts, I agree plaintiffs have demonstrate As with not to the these remaining 12 majority that the their burden to satisfied district-specific proof of racial predominance in the remaining districts: SDs 18, 19, and 33 and HDs 19, 58, 59, 72, 76, 78, 84, 98, and 103. IV. Conclusion For the above reasons, I concur with the majority that 12 of the districts (Senate Districts 20, 26, and 28 and House Districts 32, 53, 54, 70, 71, 77, 82, 85, and 99) do not pass constitutional muster and that 12 districts (Senate Districts 18, 19, and 33 and House Districts 19, 58, 59, 72, 76, 78, 84, 98, and 103) do pass constitutional muster. I respectfully conclusion that an dissent from additional 12 169 the majority’s districts (Senate Districts 23 and 24 and House Districts 52, 55, 56, 57, 60, 67, 68, 69, 83, and 97) are constitutional. DONE, this the 20th day of January, 2017. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

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