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, )
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:
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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,
https://www.alabamavotes.gov/ElectionsData.aspx.
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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