Page et al v. Virginia State Board of Elections et al

Filing 299

MEMORANDUM OPINION. Signed by U.S. Circuit Judge Albert Diaz, District Judge Liam O'Grady, and District Judge Robert E. Payne on 1/7/2016. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

GLORIA PERSONHUBALLAH, et al.,
Plaintiffs,

v.

Civil Action No. 3:13cv678

JAMES B. ALCORN, et al.,
Defendants.

MEMORANDUM OPINION

Before DIAZ, Circuit Judge, O'GRADY,
Senior District Judge.

District Judge,

and PAYNE,

DIAZ, Circuit Judge:
This court twice has
District

to

violation

be

of

an

the

found Virginia's Third Congressional

unconstitutional

Equal

Protection

racial

Clause

gerrymander,

of

Amendment of the United States Constitution.

the

in

Fourteenth

See Page v.

Va.

State Bd. of Elections (Page II), No. 3:13cv678, 2015 WL 3604029
(E.D.

Va.

June

(Page I),

58 F.

Cantor

v.

5,

2015);

Supp.

Page

3d 533

Personhuballah,

v.

Va.

(E.D. Va.
135

s.

State
2014),
Ct.

Bd.

of

Elections

vacated sub nom.

1699

(2015).

We

subsequently ordered the Virginia General Assembly to devise a
redistricting

plan

September 1, 2015.
act.

to

remedy

the

constitutional

violation

by

The General Assembly convened but failed to

As a result, and after considering input from the parties,

we appointed Dr. Bernard Grofman 1 as special master to assist and
advise the court in drawing an appropriate remedial plan.
also directed all

parties

and interested nonparties

to

We

submit

proposed plans.
On November 13, 2015, the Supreme Court noted that it would
hear argument in Intervenor-Defendants' 2 appeal of the liability
judgment, asking the parties to additionally address whether the
Intervenors have standing to bring the appeal.
Personhuballah,

No.

2015).

reviewing

After

nonparties,
Also

on

Dr.

that

14-1504,

2015

all

WL

plans

3867187

submitted

See Wittman v.
(U.S.
by

Nov.

13,

parties

and

Grofman filed his report on November 16,

day,

the

Intervenor-Defendants

moved

to

2015.

suspend

further proceedings and to modify our injunction pending Supreme
Court

review.

responsive
December 14,

We

briefing

ordered the
to

the

parties

special

to

continue with their

master's

report,

and

on

2015, we held a hearing on both the merits of the

1

Dr. Grofman is Professor of Political Science and Jack W.
Peltason Endowed Chair of Democracy Studies at the University of
California, Irvine, and former Director of the UCI Center for
the Study of Democracy.
He has participated in over twenty
redistricting cases as an expert witness or special master, and
has been cited in more than a dozen Supreme Court decisions.
2

Intervenor-Defendants David Brat, Barbara Comstock, Robert
Wittman, Bob Goodlatte, Randy Forbes, Morgan Griffith, Scott
Rigell, and Robert Hurt (collectively, "the Intervenors") are
the
Republican
Congressional
representatives
for
the
Commonwealth of Virginia.

2

special

master's

recommendations

and

whether

to

stay

our

implementation of a remedy pending the Supreme Court's review of
the liability judgment.
We hold that the balance of equities favors our immediate
imposition of a
find

of

To that end,

remedial redistricting plan.

that

one

Congressional
the

two

plans

Plan Modification

constitutional

Accordingly,

the

we

violation
direct

16

that

proposed
("Plan
we

16"},

described

Defendants

the

by

to

we

Dr.

Grofman,

best

remedies

in

Page

implement

II.
the

redistricting plan attached to the court's order as Appendix A
for the 2016 U.S. House of Representatives election cycle.

I.

A.
Plaintiffs Gloria Personhuballah and James Farkas 3 reside in
Virginia's Third Congressional District.

In Page I,

the Defendants 5 in their official capacities,

4

they sued

alleging that the

3

Dawn Curry Page was also a named plaintiff at the time the
suit was filed, but was later dismissed from the case.
4

The facts and history of the litigation are described
fully in Page II, 2015 WL 3604029, at *1-6.
We set forth an
abridged version here.
5

Defendants James B. Alcorn, Clara Belle Wheeler, and
Singleton B.
McAllister,
are
chairman,
vice-chairman,
and
secretary
of
the
Virginia
State
Board
of
Elections,
respectively.

3

Third District was

racially gerrymandered in violation of the

Fourteenth Amendment's

Equal

We

Protection Clause.

held that

because racial considerations predominated in the drawing of the
district boundaries, strict scrutiny applied.
plan

was

not

government
because

narrowly

interest,

the

as

General

indicating that

a

tailored
required

to
to

Assembly

We found that the

advance

survive

did

not

a

compelling

strict

have

black voting-age population

scrutiny,

any

evidence

("BVAP")

of

55%

was required in the Third District for the plan to comply with
Section 5 of the Voting Rights Act.
the Supreme Court,

The Intervenors appealed to

and on March 30, 2015, the Court vacated the

judgment and remanded the case for reconsideration in light of
Alabama

Legislative

(2015).

Cantor

Black Caucus

v.

Alabama,

v.

135

S.

s.

Ct.

1699

Personhuballah,

135

1257

Ct.

(2015)

(mem.) .
We

reconsidered

mandate,

again

ordered

the

districting
Assembly

the

found

the

Virginia
plan

failed

remedial plan.

by
to

case
Third

General

we

accord

District

1,

took

with

Court's
and

to

new

implement

2015.
up

the

unconstitutional,

Assembly

September
act,

in

the

When
task

the
of

a

General

drawing

a

See White v. Weiser, 412 U.S. 783, 794-95 (1973)

("[J]udicial relief becomes appropriate only when a legislature
fails

to

requisites

reapportion

according

in

fashion

a

timely

4

to

after

federal
having

constitutional
had

an

adequate

opportunity to do so."

(quoting Reynolds v. Sims,

377 U.S.

533,

586 (1964))}.

To
desiring

that
to

end,
do

we

so

directed the

to

submit

parties

proposed

and any

remedial

nonparties

plans.

The

Plaintiffs submitted one plan and the Intervenors submitted two.
In

addition,

nonparties

OneVirginia2021;

the

Richmond

First

Club; Senator J. Chapman Petersen; Bull Elephant Media, LLC; the
Virginia State Conference of NAACP Branches; Jacob Rapoport; and
the Governor of Virginia each submitted a plan.
not consider, nor do we,

Dr. Grofman did

the plans submitted by OneVirginia2021

and Bull Elephant Media, as the former did not include a map and
the latter did not include the shape file we had required for
detailed analysis.

Dr. Grofman thus had eight maps to consider.

B.
The

2016

Virginia.

congressional

Candidates

qualified voters
explained that,
its

best

to

on

were

election
set

January 2,

to

cycle

start

2016,

has

begun

in

seeking petitions

of

and the

just

Defendants

have

while the Virginia Board of Elections will do

implement

any

judicial

order,

the

risk

of

error

increases the later the Board is given a new plan to implement.
Although Defendants

could not provide a precise date at which

5

implementation

would

be

impossible,

they

say

it

would

be

suspend

our

critical to have a plan in place by late March. 6

II.

We

first

address

the

Intervenors'

motion

to

proceedings pending Supreme Court review.
All
prevents

parties

agree

Virginia

from

that,

because

conducting

our

another

extant

injunction

election

under

the

redistricting plan enacted in 2012

(the "Enacted Plan") but does

not

we

provide

injunction

an
to

alternative
allow

the

plan,

2016

must

election

either

to

modify

proceed

that

under

the

Enacted Plan, or enter a new plan.
The Intervenors argue that the Supreme Court's decision to
set oral argument in Page II has stripped us of jurisdiction to
enter

a

equities

remedial
favors

plan,

or

alternatively,

"suspend [ ing]

Supreme Court's decision."
Suspend 2,

ECF No.

271.

balance

of

any remedial efforts pending the

They cite Donovan v.
454 U.S.

United States v. Locke, 471 U.S. 84
485 U.S.

the

Intervenor-Defs.' Mero. Supp. Mot. to

Ass'n for Retarded Citizens,

Wells Fargo Bank,

that

351

(1982)

(per curiam),

(1985), and United States v.

(1988),

6

389

Richland County

for the proposition that

If the Board were to receive the plan that late,
minimum, the primary election would have to be pushed back.

6

at

our jurisdiction is stripped by the filing of a notice of direct
appeal.

But these cases support only the claim that we could

not now alter our liability decision;

they do not speak to our

jurisdiction to enter a remedy.
In Donovan,
that

the

mental
The

the plaintiff sued for a declaratory judgment

application

heal th

district

of

facility
court

the
it

so

Fair

Labor

operated would be

held,

and

the

the

appellants

filed

their

Circuit

454 U.S.

notice

Act

to

the

unconstitutional.

Ninth

decision affirming the district court.
after

Standards

of

issued

Then,

at 389.

appeal,

a

the

Ninth

Circuit sua sponte issued a new decision reversing the district
court.

Id.

at

390

Here,

n.2.

in

contrast,

our

entering

a

remedy would not in any way affect the liability decision now
before the Supreme Court.
Similarly,
it

could

portion

in Locke and Wells Fargo,

resolve
of

the

unconstitutional
jurisdiction"
before
Locke,

[the

judgment
that

because
Court]."

4 71 U.S.

statement

statutory questions

at

92.

to mean that

"such
Wells
The

even

declaring

provides

the Court noted that
though

an

Act

Court]

appeal

an

[the

brings

Fargo,

485

U.S.

it

was

Congress

of
with

the
at

"the

appellate

entire
354;

case

accord

Intervenors urge us to read this

their appeal

of the

liability judgment

also brings the remedial aspect of the case before the Supreme
Court.
7

The

clear

meaning

of

the

phrase

"the

entire

case"

in

context, however, is that statutory claims are not stripped from
the

constitutional

claims

in a

single

liability case-that

is,

the entire liability case is before the Supreme Court on appeal.
The Court's use of the phrase thus says nothing about the effect
the appeal of a

liability decision has on the

jurisdiction of
See Griggs

the district court charged with crafting a remedy.
v.

Provident

curiam)

("The

Consumer

Disc .
of

filing

Co . ,
notice

a

4 5 9 U. S .
of

5 6,

appeal

58
is

( 19 8 2 )
an

(per

event

of

jurisdictional significance-it confers jurisdiction on the court
of appeals and divests the district court of its control over
those

aspects

of

the

case

added) ) .

Because

the

"aspect[]

of

case

the

involved

remedial

in

phase

involved

in

the
of

the

appeal."

this

(emphasis

case

is

appeal,"

we

not

an

retain

jurisdiction over it.
Accordingly,
stay

we turn to the question of whether we should

implementation

consideration

of

the

of

a

remedy

Intervenors'

pending
appeal.

the

Supreme
We

Court's

consider

four

factors when determining whether to issue a stay pending appeal:
" ( 1) whether the stay applicant has made a strong showing that
he is likely to succeed on the merits;

(2) whether the applicant

will be irreparably injured absent a stay;

( 3) whether issuance

of

the

the

stay

will

substantially

interested in the proceeding; and
8

injure

other

parties

(4) where the public interest

Hilton v.

lies."

Braunskill,

481 U.S.

770,

776

(1987);

accord

Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970).
We address each factor in turn,
stay is considered
party bears a

keeping in mind that "[a]

'extraordinary relief'

for which the moving

'heavy burden,'" and "[t]here is no authority to

suggest that this type of relief is any less extraordinary or
the

burden

Larios

v.

any
Cox,

less
305

exacting
F.

in
2d

Supp.

the
1335,

(quoting Winston-Salem/Forsyth Cty.

redistricting

Bd.

1336

context."

(N.D.

of Educ.

v.

Ga.

2004)

Scott,

404

U.S. 1221, 1231 (Burger, Circuit Justice, 1971)).
A.

The

Intervenors have not made a

are likely to succeed on the merits.
the

Third

Congressional

unconstitutional,

District

including

Court's guidance in Alabama.

with

strong showing that they
First, we have twice found

as
the

presently
benefit

drawn

of

the

to

be

Supreme

There, the Court made clear that a

districting plan fails strict scrutiny when a state legislature
insists on maintaining "the same percentage of black voters" in
a

majority-minority

district

without

that

that

evidence

percentage of black voters is required to preserve their ability
to elect a candidate of choice.

Alabama,

135 S.

Ct.

at 1272.

That is precisely what the General Assembly did here.
Second,

our

holding

as

to

liability

was

driven

by

our

finding that racial factors predominated in the drawing of the
9

The Supreme Court will review that finding for clear

District.

error; thus,

even if the Court would have decided otherwise,

can

only if "it

reverse

conviction

that

a

Cromartie,

532 U.S.

is

'left with

mistake
234,

has

242

been

the

definite

firm

Easley

committed.'"

(2001)

and

it

v.

(quoting United States v.

U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
Third, the standard for the Supreme Court to set a case for
oral

argument

Because-unlike
Court

must

in
in

make

direct
the

a

appeals

context

decision

is

not

a

of petitions

on

demanding

for

the merits

in

one.

certiorari-the
direct

appeals,

whether the Court schedules oral argument turns on whether the
proper

resolution

of

jurisdictional statement,
that

further

briefing

case

the

so

is

opposing motion,

and

argument

is

from

clear

and opinions below,
Compare

unnecessary.

Shapiro et al., Supreme Court Practice 304 (10th ed. 2013)
the direct
question

appeal context, J

is

whether,

presented by

counsel

opposing motion,

in

("[In

[w] ith respect to the merits,

after

reading

the

the

the

condensed

jurisdictional

arguments

statement

as well as the opinions below,

the

and

the

the Court can

reasonably conclude that there is so little doubt as to how the
case will
would be

be
a

introduction
'importance'

decided that

waste
of

of
the

oral

time."),
word

argument

with

id.

'compelling'

and
at
and

further

240

briefing

("[T]he

the

use

recent
of

the

concept throughout Rule 10 indicate that the Court
10

utilizes

highly

selective

standards

of

review

[for

granting

petitions for certiorari].").
Thus the Court's decision to hear oral argument indicates
only

that

decided.

there

is

some

doubt

as

to

how

the

case

will

be

This is not enough to meet the Intervenors' burden of

showing that they are likely to succeed on the merits.

B.
Nor
injury

have

that

public.

the

outweighs

While

districts

Intervenors

we

any

accept

affected

by

shown

injury
that

our

a

to

the

personal

the

Plaintiffs

Intervenors

chosen

irreparable

remedy

who

will

and

the

live

have

in

more

complicated campaigns if we do not stay this case and the Court
ultimately

reverses,

they

nonetheless

have

the

benefit

of

knowing the two possible maps that will be in place at the time
of the elections.

In addition, under the remedial plan we adopt

today, each incumbent remains in his or her current district and
no

two

incumbents

Intervenors

can

are

paired

gather petition

in

a

single

signatures

district.

primarily

areas within their district under either map,

in

The
those

and can prepare a

contingency plan if the Supreme Court rules in their favor.
We acknowledge that

even with such a

contingency plan,

a

return to the Enacted Plan will cause hardship to some of the
Intervenors'
stay

with

campaigns.
the

effect

But we are more reluctant to grant a
of

"giv[ing]
11

appellant

the

fruits

of

victory

whether

Barber,

252

or

F.2d

not

550,

the
553

appeal
(9th

has

Cir.

Jimenez

merit."
The

1958).

v.

Intervenors

would have us modify our injunction to ensure the 2016 election
proceeds under the Enacted Plan regardless of the outcome of the
Supreme

Court's

Intervenors
judgment

do

on

review.
not

the

Thus,

have

merits,

even

standing
the

if

to

the

Court

appeal

Intervenors

say

the

affirms

or

finds

our

that

the

2016

election should proceed under the unconstitutional Enacted Plan,
deferring

implementation
The

election.

effect

of

our

would

chosen

be

to

remedy

give

the

until

the

Intervenors

2018
the

fruits of victory for another election cycle, even if they lose
in the Supreme Court.

This we decline to do.

c.
We also find that granting a stay will substantially injure
The Plaintiffs

the other parties interested in the proceeding.

have twice obtained a judgment that their congressional district
was

racially

right,

such

violates
harm."
1996)

the

"Deprivation

gerrymandered.
as

limiting

Equal

Johnson v.

right

Protection
Mortham,

(citations omitted)

373-74 (1976)).

the

to

Clause,

926 F.

vote

of

a

in

fundamental

a

manner

constitutes

Supp.

1540,

that

irreparable

1543

Fla.

427 U.S.

(citing Elrod v. Burns,

(N.D.

34 7,

To force the Plaintiffs to vote again under the

Enacted Plan even if the Supreme Court affirms our finding that
the

Plan

is

unconstitutional-and
12

to

do

so

in

a

presidential

election year, when voter turnout is highest,
933 F. Supp. 1341, 1348

see Vera v. Bush,

(S.D. Tex. 1996)-constitutes irreparable

harm to them, and to the other voters in the Third Congressional
District. 7
As for the Defendants,
us,

among the imperfect choices open to

staying implementation of our remedy would do them the most

harm.

"With

reasonably
process

respect

endeavor

which might

to
to

the
avoid

result

timing
a

from

of

relief,

disruption

of

a

court

the

can

election

requiring precipitate

changes

that could make unreasonable or embarrassing demands on a State
in

adjusting

Reynolds,

to

the

377 U.S.

requirements

at 585.

of

the

court's

decree."

If the Court affirms our judgment,

the Commonwealth would either have to postpone the primary and
rush to redraw districts at a much higher risk of error,

or be

forced to hold another election under an unconstitutional plan.
By adopting a remedy now, the Commonwealth faces the lesser evil
of

implementing

new

relatively manageable

districts
task;

at

then,

7

a

time

when

if

the

Court

it

remains

reverses,

a
the

Although the Plaintiffs did not file suit until 2013, we
think the delay was a greater concern leading up to the 2014
election; now that over two years have passed, the original
delay in filing does not weigh in favor of our allowing another
election to proceed under an unconstitutional plan.
See Page I,
58 F. Supp. 3d at 554 ("Plaintiffs are largely responsible for
the proximity of our decision to the November 2014 elections.").

13

Conunonwealth need only revert to districts that it has operated
under for years-a much less daunting challenge.

D.
Finally,
Plaintiffs'

we find that the public interest aligns with the
and

and

interests,

Defendants'

against staying implementation of a remedy.
to the

thus

militates

As noted, the harms

Plaintiffs would be harms to every voter in the Third

Congressional

District.

In

the

addition,

harms

to

the

The public has an interest in

Conunonweal th are public harms.

having congressional representatives elected in accordance with
the

Constitution.

As

the

Supreme

Court

has

noted,

once

a

districting scheme has been found unconstitutional, "it would be
the

unusual

case

in which

taking appropriate

a

action to

court

would be

insure

that no

are conducted under the invalid plan."
Accordingly,

we

decline

to

stay

justified in
further

not

elections

Id.
the

implementation

of

a

drawing

a

remedy.

III.

We

turn

to

the

redistricting

plan

Perez,

Ct.

v.

132 S.

Finch,

interests

remedy.

faces
934,

431

U.S.

that

must

an

940
407,
be

A court

tasked

"unwelcome
(2012)

obligation,"

(per curiam)

415

(1977)),

balanced

are

14

with

as

better

Perry

v.

(quoting Connor
the

conflicting

suited

to

the

legislative process,

see White,

412 U.S.

at

794-95

("From the

beginning, we have recognized that 'reapportionment is primarily
a

matter

(quoting

for

legislative

Reynolds,

377

consideration

U.S.

at

and

586)).

determination.'"

However,

given

the

General Assembly's failure to draw a new plan, it falls to us to
do

so,

within the

bounds

set by the Cons ti tut ion and federal

law.

A.
First and most fundamentally, Article I,
Constitution
population

"requires
equality

"[c]ourt-ordered

districts

congressional

'as

nearly

districts

are

as

held

is

7-8

( 1964));

(1997)

see

also

to

achieve

practicable,'"

to

higher

population equality than legislative ones."
521 U.S. 74, 98

Section 2 of the

standards

Abrams v.

and
of

Johnson,

(quoting Wesberry v. Sanders, 376 U.S. 1,
Alabama,

135

S.

Ct.

at

1271

(" [Tlhe

requirement that districts have approximately equal populations
is a background rule against which redistricting takes place.").
Thus,

since

no

"significant

state

policy

or

unique

features"

require us to depart from equal population districts, Chapman v.
Meier,

420 U.S.

1, 26

(1975), we consider it a requirement that

our remedial plan have district populations within one person of
727,366.

Dr. Grofman's Plan 16 satisfies this requirement.

B.

15

Second,
( 1993) ,
Plan.

we

must

remedy

violation that
In

Page

insistence on a

II,
55%

the

Shaw

v.

Reno,

509

U.S.

630

led to the invalidation of the Enacted
we

BVAP

found

that

in the

the

General

Assembly's

Third Congressional

District

predominated over traditional redistricting principles, and that
a 55% BVAP requirement was not narrowly tailored to comply with
Section 5 of the Voting Rights Act.
drawers

either

principles"
do,

not

Shaw requires

to racial considerations,

id.

at

642,

or,

if they

the district lines must be "narrowly tailored to further a

compelling

governmental

districting

principles

interest,"
in

Virginia

id.

at

include

6,

"respect

3604029,

at

for
*10

political
(quoting

subdivisions,"
Shaw,

509

Traditional

643.
the

requirements of compactness and contiguity, Va.
§

districting

"traditional

subordinate

that map-

constitutional
Const. art.

Page

U.S.

II,

at

2015

64 7)

'

II,
WL

and

"consideration of communities of interest," id. at *3. 8

8

The Intervenors emphasize the importance of preserving
district cores.
In Page II, however, we were not convinced that
this was a factor driving the General Assembly's adoption of the
Enacted Plan.
2015 WL 3605029, at *12.
In addition, by
choosing a plan that changes the Enacted Plan only so far as
necessary to remedy the constitutional violation,
we have
preserved district cores where possible.
In any event,
maintaining
district
cores
is
the
type
of
political
consideration that must give way to the need to remedy a Shaw
violation.

16

The
shape

Third Congressional

and a

composition

District

of a

predominantly African-American,
River," id.
with

at

Richmond

*11,

"reflect [s]

disparate

chain

both

of

an

odd

communities,

loosely connected by the

James

connecting the Tidewater area to the east

to

the

west.

Our

Page

II

decision

was

particularly concerned with the Third District's contorted shape
and use of non-physical contiguity.
In drawing Plan 16's Third District,

To achieve population equality

Tidewater region as its center.
in

the

District,

he

was

Dr. Grofman chose the

guided

by

the

neutral

goals

of

compactness, contiguity, and avoiding unnecessary city or county
splits,

Those districts

rather than any racial considerations.

abutting 9 the Third District were then drawn to achieve equal
population,

following the same major considerations.

Based on the

of the neutrally drawn Third District was 45.3%.
record evidence,
above"

40%

Dr.

Grofman determined that

would preserve African-American

a

The BVAP

BVAP "somewhat

voters'

ability to

elect the representative of their choice in the Third District.
Report of the Special Master 37, ECF No. 272.

There was thus no

need for Dr. Grofman to alter Plan 16 to increase the BVAP of the
Third District.

9

The First, Second, Fourth, and Seventh Districts abut the
Third District in the Enacted Plan.

17

Plan

16

also

improves

vastly

the

Third

District's

compactness

score and meaningfully improves the Plan's average

compactness

scores

across

all

the

affected

districts.

The

scores only confirm what a quick look at Plan 16 makes clear.
See Page II, 2015 WL 3604029, at *10 (citing Karcher v. Daggett,
462

U.S.

725,

762

addition,

Plan

16

(1983)

(Stevens,

relies

on

land

contiguity;

contiguity is permissible in Virginia,
id.

at *11

("Here,

concurring)).

J.,

while

In
water

it can be abused.

the record establishes that,

boundaries of the Third Congressional District,

See

in drawing the
the legislature

used water contiguity as a means to bypass white communities and
connect predominantly African-American populations in areas such
as Norfolk,

Newport News,

And because racial

and Hampton.") .

considerations did not predominate in the drawing of Plan 16,
the Plan is not subject to strict scrutiny.
In contrast, the plans offered by the Intervenors do little
to cure the Shaw violation.

The plans draw the Third District

tortuously and much like the Enacted Plan,
to

be

race-based,

thus

likely

in ways that appear

triggering

strict

scrutiny.

Though the plans lower the BVAP in the Third District to just
over 50%,
record

this choice remains constitutionally suspect,

indicates

that

a

significantly

lower

BVAP

as the

would

be

sufficient for minority voters to be able to elect a candidate

18

of

The

choice.

50%

BVAP thus

cannot be

said to be

narrowly

tailored to advance a compelling government interest.
Our

limited

Alternative

Plan,
We

otherwise.
disprove

approval

the

which

in

Page

had

the

highlighted

the

claim

that

"the

II

same

of

BVAP,

the
does

Alternative

population

Plaintiffs'
not

Plan

swaps

suggest

simply

to

involving

the

Third Congressional District-and resulting locality splits-were
necessary to

achieve population parity in accordance with the

constitutional mandate of the one-person-one-vote rule."
*12.

Id. at

Critically, however, we did not then have the benefit of a

racial

bloc

voting

analysis;

nor

did the

Plaintiffs

have

the

guidance of our ruling when they drafted the plan.

c.
Third,

our

implementation

of

a

remedial

plan

"should

be

guided by the legislative policies underlying the existing plan,
to the extent those policies do not lead to violations of the
Constitution or the Voting Rights Act."

Abrams, 521 U.S. at 79.

How closely we must hew to the legislative policies depends on
the scope and effect of the constitutional violation.
In Upham v.

Seamon,

456 U.S.

37

( 1982}

(per curiam},

the

Court found that the district court had exceeded the bounds of
its

authority

when

only

two

of

twenty-seven

districts

were

objectionable, yet the court redrew districts that were hundreds
of miles away from those districts.
19

In White v.

Weiser,

the

Court

reversed,

finding

that

the

district

court had before

two plans that fully remedied the constitutional violation,
without

explanation

chose

districting policy."

the

plan

412 U.S.

at

that

796.

it
and

"ignored

legislative

In Abrams,

like here,

the enacted plan was

invalid because of racial

gerrymandering,

and

shape

and

the

"contorted

of

the

district

the

undue

predominance of race in drawing its lines" made it "unlikely the
district

could

be

redrawn

without

Georgia's congressional districts."
therefore
"ma[de]

approved

the

district

changing

most

521 U.S.

court's

or

of

The Court

at 77.

remedial

all

plan,

which

substantial changes to the existing plan consistent with

Georgia's

traditional

districting

principles,

and

considering

race as a

factor but not allowing it to predominate."

Id.

at

86.
Reading

these

cases

together,

we

conclude

that

to

best

balance the need to remedy the Shaw violation with the deference
otherwise due

to the General Assembly's

redistricting choices,

our chosen remedial plan should not alter any districts outside
of

the

Third

substantial

District

and

those

abutting

changes to those districts.

it,

See id.

but

may

Whereas

make
the

two misshapen districts in Abrams allowed the district court to
change all eleven of Georgia's districts, here the one misshapen
district

only

requires

changes

congressional districts.
20

to

five

of

Virginia's

eleven

Plan 16 best achieves this balance,

leaving untouched the

districts that do not abut the Third, 10 while altering the Third
and its abutting districts only as necessary to remedy the Shaw
violation.

In addition,

her original district,
the

remedial

court's

plan.

plan

"[p] rotecting
find

which minimizes the disruptive impact of
See

id.

at

considered

incumbents

from

84

but

(finding

valid

subordinated

contests

with

a

the

each

district
factor

other") .

Plan 16 superior to the other plan drawn by Dr.

NAACP Plan 6,
the

that

Plan 16 leaves each incumbent in his or

Shaw

in this regard.

violation

while

of
We

Grofman,

While NAACP Plan 6 also remedies
preserving

equal

population

and

limiting its changes to the Third District and those districts
abutting it,

it requires reallocating significantly more of the

population in the affected districts.
The Intervenors argue that adopting a plan consistent with
the

General

Assembly's

Republican-Democratic

policies

split.

requires

That

is

not

maintaining
correct.

an

8-3

Though

Abrams found a district court's plan to be valid where the court
considered,

but

subordinated,

protecting

incumbents

from being

paired in a single district, we have found no case holding that
10

Six of the submitted plans fail in this regard, making
changes to districts that do not abut the Third District.
For
that reason, we reject the plans submitted by the Plaintiffs,
the Governor of Virginia, the NAACP, Senator Petersen, Mr.
Rapoport, and Richmond First.

21

we must maintain a specific political advantage in drawing a new
plan,

and at

some point political concerns must give way when

there is a constitutional violation that needs to be remedied.
See id.
"[n]o

at 88

other

(allowing departure from legislative policy where
plan

demonstrated"

"while satisfying the

the

policy

constitutional

could

requirement

be

followed

that

race

not

This is

predominate over traditional districting principles") .

especially true given the Supreme Court's expressed concern over
See,

partisan gerrymandering.
Ariz.

Indep.

Redistricting Corrun'n,

135 S.
Court

incompatible

at

316

Ariz.

gerrymanders,'

("'Partisan

Jubelirer,

e.g.,

with

democratic

541 U.S.

(Kennedy,

this

267,
J.,

292

State Legislature v.
Ct.

has

principles.'"
(2004)

concurring

2652,

2658

recognized,
(quoting

the

'are

Vieth

(plurality opinion)
in

(2015)

judgment))

v.

and id.
(brackets

omitted)) .

D.
Finally,
federal
5 21

law-in particular,

U. S.

court

our chosen plan should be guided by principles of

at

96

should

Rights Act]

(explaining that

follow

the

standards . .

130,

149

(1981)));

Voting Rights Act]

does

"in fashioning

appropriate
.

factor to take into account"
U.S.

See Abrams,

the Voting Rights Act.

at

the

Section

5

very least

the
[of

as

(quoting McDaniel v.

id.

at

not

apply to a
22

90

("On its

face,

plan,
the

an

Voting

equitable

Sanchez,
§

the

2

452

[of the

court-ordered remedial

redistricting plan, but we will assume courts should comply with
the

section

when

exercising

their

equitable

powers

to

redistrict.") .
Al though the Court's decision in Shelby County v.
133 S. Ct. 2612

Holder,

(2013), has called into doubt whether compliance

with Section 5 is a compelling interest, our remedial plan need
not

meet

strict

predominate

in

scrutiny,
Dr.

adoption of it.

as

Grofman's

In addition,

racial
drawing

considerations
of

the

map

did

or

not

in

our

the General Assembly intended to
Thus,

comply with Section 5 when it drafted the Enacted Plan.

we think it is appropriate to consider compliance with Section 5
as

an equitable

~'

133 S.

only

on

the

Ct.

factor

in our remedial

at 2631

coverage

("We issue no holding on
formula.") .

Cf.

calculus.

Similarly,

§

Shelby

5 itself,

though

the

Intervenors urge us not to consider the requirements of Section
2, 11 as no Section 2 claim was raised in Page II,

11

we think it

More specifically, the Intervenors say that Dr. Grofman's
decision to consider "packing" and "fragmentation" of minority
voters in drawing his remedial plans is inappropriate where the
Plaintiffs have not alleged such a claim.
This misunderstands
the point.
We found a constitutional violation in Page II
because the plan was not narrowly tailored to advance a
compelling interest, given the General Assembly's failure to
show that a 55% BVAP was necessary to preserve minority voters'
ability to elect a candidate of choice in the Third District.
In short,
by "packing" more African-American voters than
required into the Third District, the Enacted Plan fragmented
the African-American vote in the surrounding districts.
Dr.
(Continued}
23

appropriate

to

implement

a

plan

that

complies

with

federal

policy disfavoring discrimination against minority voters.
Section
minority's
Alabama,

5

"requires

the

ability to elect
135

S.

Ct.

minority voters "an

at

a

jurisdiction

to

maintain

preferred candidate

1272.

Section

'equal opportunity'

2

to

a

of choice."

prohibits

denying

'participate in the

political process and to elect representatives of their choice'"
where

the

minority

geographically

compact

member district"
majority

"votes

is

group
to

and is

constitute

a

majority

"politically cohesive,"

sufficiently as

a

bloc

to

defeat the minority's preferred candidate."
91

(quoting 42 U.S.C.

§

1973(b)

large

"sufficiently
in

a

and

single-

and where the

enable

it . . .

Abrams,

521 U.S. at

and Thornburg v.

Gingles,

to

478

U.S. 30, 50-51 (1986)).
Dr.

Grofman' s

Plan 16 results

in a

BVAP of 45. 3%

Third District and 40. 9% in the Fourth District.

in the

In contrast,

the Enacted Plan has a BVAP of 56.3% in the Third District and
31. 3% in the Fourth District.
of previous elections
that

the

minority

in the

choice

Dr.

Grofman's thorough analysis

relevant

candidates

areas of Virginia shows
would

likely

receive

a

significant majority vote-over 60% in each case-in the new Third

Grofman' s
mind.

remedial plans were drawn with our holding firmly in

24

District with a
consistent
Alabama.

with

Section

See 135 S.

Thus Plan 16' s Third District is

BVAP.

45.3%

S's

Ct.

requirements,

at 1273

as

articulated

in

("Section 5 does not require

maintaining the same population percentages in majority-minority
districts as in the prior plan.

Rather,

Section 5 is satisfied

if minority voters retain the ability to elect their preferred
candidates.").
Additionally,
minority voters'

Dr.

candidates

indicates

analysis

Grofman's

of choice would also

that

receive over

60% of the vote in a new Fourth District with a BVAP of 40.9%.

This analysis indicates that a Section 2 challenge to the Fourth
District would fail,
with

a

as the ability to garner 60% of the vote

significantly

majority

does

not

below-majority

"vote[]

BVAP

sufficiently

indicates

as

a

bloc

that
to

it . . . to defeat the minority's preferred candidate. 11
521 U.S.
90-91

at 91

(quoting Thornburg,

478 U.S.

(noting that plaintiffs bringing a

show all three threshold conditions) .

the

enable
Abrams,

at 51); see id.

at

Section 2 claim must

We therefore

find that

Plan 16 accords with the principles of Section 2.
In short, Plan 16 remedies the Shaw violation that we found
in

Page

II

criteria.

by drawing districts based on neutral,
Additionally,

traditional

it remains consistent with the Enacted

Plan to the extent possible while remedying the Shaw violation,
and honors

the principles

underlying Sections
25

2 and

5 of the

Voting Rights Act.

It is thus the plan that best fulfills our

remedial mandate.
It is so ORDERED.

Isl

Isl
Albert Diaz

Liam O'Grady

Richmond, Virginia
Date:
January 7, 2016

26

PAYNE, Senior District Judge,
in part.

concurring in part and dissenting

I.
I

agree that the Intervenors'

appeal to the Supreme Court

does not di vest this Court of jurisdiction to enter a remedial
plan.

And,

I agree with the rationale offered to support that

decision.

II.
For the reasons set forth in the dissent on the merits of
this

case,

proved

I

that

remain of the view that the
race

predominated

over

principles in the redistricting,
v.

Virginia State Bd.

(E.D.

Va.

June 15,

traditional

redistricting

including that for CD3.

Of Elections,

2015).

Plaintiffs have not

2015 WL 3604029,

Therefore,

I

at *19-26

think that a remedial

plan is neither required nor permitted.
That

said,

if

the

majority

affirmed by the Supreme Court,
adopted

by

the

majority

I

opinion

on

the

merits

is

agree that the remedial plan

("Congressional

Modification

16")

represents the most appropriate way to remedy the constitutional
violation

that

merits.

There

reasoning

for

the
is,

majority
however,

rejecting

the

identified
one

in

its

component

Intervenors'

which I take a somewhat different view.

of

the

remedial

on

the

majority's
plan

In particular,

to the argument made by the Intervenors that,
27

opinion

as

to

I refer

to be consistent

with the General Assembly's articulated redistricting policies,
the

remedial

plan

must

maintain

the

8-3

Republican-Democrat

split deliberately chosen by the General Assembly.
The
agree.

majority

concludes

"[t]hat

is

not

correct,"

and

I

But, my agreement is not predicated on the decision in

Arizona

State

Comm'n,

Legislature

135 S.

Ct.

2652,

v.

2658

Arizona
(2015)

Indep.

Redistricting

which cites the plurality

opinion and Justice Kennedy's concurrence in Vieth v. Jubelirer,
541 U.S.

267,

292

(2004).

Rather,

I read Arizona and Vieth to

reflect the substantial, and unfortunate, uncertainty present in
the Supreme Court's decisions respecting the legitimacy, if any,
of gerrymandering for partisan political purposes.
I

am

of

the

view

that,

under

current

Supreme

Court

jurisprudence, "deviations from neutral redistricting principles
on

the

basis

always

be

of

political

constitutionally

Virginia State Bd.
(E.D.

Va.

there

is

Supreme
partisan

affiliation

Oct.

22,

considerable
Court

remains

political

preference

not
v.

2015 WL 6440332,

(citations

uncertainty
quite

may

Bethune-Hill

permissible."

Of Elections,
2015)

or

on

fractured

gerrymandering,

on

point
the

including

because

Parsons,

CLEARING

THE

POLITICAL

THICKET:

the

legitimacy

whether

complaining of such gerrymandering is even justiciable.
J.

*32 n. 21

Nonetheless,

omitted).
the

at

Why

a

of

claim

Michael
Political

Gerrymandering For Partisan Advantage Is Unconstitutional 16-27
28

(Dec.

15,

"Parsons

2015),

at

p.

demonstrates

http://ssrn.com/author=2449663

__ ").12

that

the

unsettled and why.
very

well,

that

legislatures,
political

In

my

law

on

view,

political

Unfortunately,
uncertainty

lawyers,

and

gerrymandering

is

that

(hereafter

article

clearly

gerrymandering

is

as this case illustrates so

has

led

even

some

to

the

courts

constitutionally

view

that

among

partisan

permissible

in

general when, as I understand it, the Supreme Court actually has
approved

such

gerrymandering

only

in

quite

limited

circumstances.
Neither in the merits phase in this case nor in BethuneHill

did

the

Plaintiffs

contend

that

political purposes was

unconstitutional.

need to confront

issue

case.

Now,

that

however,

the

gerrymandering
Hence,

there was

for
no

in deciding the merits

of either

Intervenors

that,

have

said

in

fashioning a remedy, this Court is obligated to maintain the 8-3
partisan split in the Enacted Plan.
the

Court

necessarily

political gerrymander.

must

To decide that contention,

confront

In my view,

whether

to

effect

a

a district court cannot do

that for two reasons.

12

The
author
of
this
thorough,
thoughtful,
and
comprehensive article is a former law clerk to the undersigned.

29

First,

no

district

when

court,

necessity of undertaking redistricting,
with

the

intent

political

of

conferring

advantage.

or

Beyond the

confronted

with

the

has approached the task
maintaining

between

incumbent[s],"

725,

(1983),

courts have unanimously agreed that political

considerations
courts."
(5th

"have

no

in

1985).

Indeed,

entanglements,

courts

even

limited

this

constitutional

and

have

in

an

often

context

1361

98223,

plan

statutory

(N.D.

Ga.

at *16-17

2004);

formulated

effort

U.S.

by

the

769 F.2d 265, 268

to

avoid

"distinctly

imperatives

political

subordinate"

as

well

Larios v. Cox,

19,

as

314 F.

see also Favors v.

(E.D.N.Y. Mar.

462

treated incumbency protection

as

neutral redistricting criteria.
1357,

a

Daggett,

Wyche v. Madison Parish Police Jury,

Cir.

in

place

v.

"avoiding

contests
740

Karcher

partisan

of

limited context

a

2012); Essex v.

other,
Supp.

Cuomo,

to

2d

2012 WL

Kobach,

847

F. Supp. 2d 1069, 1093 (D. Kan. 2012); Johnson v. Miller, 922 F.
Supp.

1556,

Johnson,

1565

521 U.S.

(S.D.
74

Ga.

1995),

(1997);

aff'd

Good v.

sub

Austin,

nom.

800 F.

Abrams
Supp.

v.

557,

563 (E & W.D. Mich. 1992).
Second,
purely

for

advantage

there
the

is

is

purpose

a

strong
of

argument

achieving

unconstitutional

because

that

gerrymandering

or

maintaining

it

is

a

denial

partisan
of

the

equal protection of law guaranteed by the Fourteenth Amendment.
Why that is so is thoroughly explained in CLEARING THE POLITICAL
30

THICKET.

Parsons, at pp. 45-46.

I could not do a better job in

explaining the argument that gerrymandering for purely political
reasons is unconstitutional.
the topic now.
can

redistrict

jurisprudence,

Nor is it necessary to say more on

Suffice it to say that,
for that purpose,

a

even if a

court,

legislature

under Supreme Court

should not do so when the task of redistricting

is thrust upon it. 13

III.
Contrary
implementation

to
of

the
the

majority's

remedial

plan

view,
should

think

I

be

stayed pending

resolution of the merits of the case by the Supreme Court.
four factor test set forth in Long v.

Robinson,

that

432

The

F. 2d 977,

97 9 (4th Cir. 1970)

(citing Virginia Petroleum Jobbers Assoc. v.

Fed.

104

Power Cornm'n,

U.S.

App.

D.C.

106

(1958))

has,

in my

view, been satisfied.

13

It is one thing to find, as I did on the merits of this
case, and as did the majority in Bethune-Hill, that race was the
not predominant reason for the Enacted Plan.
That merely means
that race was not shown to be the predominate reason for drawing
the district; and, therefore, that the Plaintiffs did not prove
the only theory of the case which they presented.
On the
merits, the Plaintiffs did not assert the alternate theory that
the Enacted Plan was an unconstitutional political gerrymander,
and it would have been improper for the Court to have decided
the case on a theory neither raised nor tried.
The same is true
in Bethune-Hill.

31

A.

Likelihood of Success

For the reasons set forth in the dissent on the merits, and
as

further

explicated

in

Bethune-Hill,

I

think

that

the

Intervenors have a strong likelihood of success on the merits.
But,
the

wholly apart from that view,
Intervenors

have

a

I

"substantial

think that,
case

on

at the least,

the merits,"

that the other stay factors militate in favor of a stay.
v.

Braunskill,

481 U.S.

770,

777-78

(1987);

and

Hilton

Project Vote/Voting

For America, Inc. v. Long, 275 F.R.D. 473, 474 (E.D. Va. 2011).
The linchpin of the majority opinion is its view about the
effect of the
Enacted CD3.

use of a

55%

BVAP threshold in the drawing of

Page, 2015 WL 3604029, at *18.

opinion was issued in this case,

Since the majority

this Court has issued another

decision that rejects the dispositive role given to that factor
by the majority in this case.

Bethune-Hill, 2015 WL 6440332, at

*14-15.

The other key aspect of the majority opinion in this

case

how

is

to

apply

Alabama Legislative
(2015).

the

principles

Black Caucus

v.

On that important point,

recently

Alabama,

135

announced
S.

Ct.

in
1257

the decision in Bethune-Hill

is also at odds with the tack taken in the majority opinion in
this case.
In

sum,

this

Court

has

decided

two

dispositive,

related, redistricting issues in two quite different ways.
32

but
Both

cases

are

presently

three-judge

courts

disposi ti ve
together,

issues

three

pending
in

in

this

the

district

involve five

Supreme
to

Court.

have

The

decided

Two judges take a quite different view.

respectfully

submit,

among

finding that
that the

Taken

judges agree with the majority's view on these

key issues.

issues

these

Court. 14

judges of this

two

demonstrates

reasonable
there

is

a

a

jurists.

conflict
That,

in

on

That,

two

turn,

I

critical

warrants

a

substantial basis on which to believe

Intervenors have a

significant likelihood of success.

Hilton, 481 U.S. at 777-78.
When there are
and where, as here,

strong arguments

reasonable jurists have differed,

the balance of the equities,
United States Dept.
1307,

1317

(N.D.

a

Fla.

2011);

see also Scallon v.

2015 WL 5772107,

McConnell

Fed.

Election

at *2

Corrun'n,

(D.

Ore.

253

F.

case,

in view of
Florida v.

stay is warranted.

of Health and Human Servs.,

Winery Corp.,
v.

on both sides of a

780 F.

Supp.2d

Scott Henry's

Sept.
Supp.

30,
2d

2015);
18,

19

(D.D.C. 2003).

14

Judge Duncan, sitting by designation, and Judge O'Grady
in this case and Judge Keenan,
sitting by designation in
Bethune-Hill are of one view.
Judge Lee and the undersigned are
of a different view in Bethune-Hill,
and the undersigned
dissented in this case.

33

B.
I

Irreparable Injury
think

that

there

is

little

doubt

that

irreparable

hardship will be visited on the Intervenors if the remedial plan
is

implemented before the

Supreme Court decides the merits

of

the case.
To

begin,

landscape

for

irreparably.

once
the

the

2016

remedial
election

plan

will

is

implemented,

change

immediately

the
and

The change is so significant that, as the majority

acknowledges, the electoral process will have to be conducted on
two fronts.
In

particular,

the

Intervenors

will

have

districts as fixed by the Enacted Plan so that,

to

run

in

the

if the case is

reversed on the merits, they will be positioned to be elected in
the district specified by the General Assembly.

And,

they will

have to run in the districts under the remedial plan so that, if
the merits opinion is affirmed,
elected.

And,

of course,

they will be positioned to be

other candidates will have to proceed

in the same fashion.
In other words,

until after the Supreme Court decides the

case, neither the Intervenors, nor their possible opponents, nor
the electorate will know the composition of the districts that
will be in effect in November 2016.
view

expressed by my colleagues

With all

respect to the

in the majority,

I

think the

two-front process is irreparable injury to the Intervenors.
34

In

fact,
both

the

solution presented by the

the

added

old and new districts),

expense

to

all

challengers, a certainty.
the incumbents
each district
politics

think,

candidates,

(to

makes

both

campaign

in

considerable

incumbents

and

Additionally, it is quite likely that

(Intervenors} could face different challengers in
(the old and the new).

local," 15

is

I

majority

it

is

also

Moreover,

likely

that

because "[a]ll
the

issues

of

importance to the constituents in the old and the new districts
will be somewhat different.

That would be especially true in

the case of CD3, 16 CD2, and CD4, where the composition, geography
and demography significantly change in the remedial plan.
The

prospect

circumstances

of

running

presents

a

parallel

realistic,

campaigns

serious,

under

and

such

immediate

threat of confusion for candidates and constituents alike that
is, I submit, irreparable harm to the Intervenors.
compounded

by

organizations

the
and

need

to

advertising

fund

two

programs,

That harm is

different
depending

on

campaign
who

the

15

The phrase is commonly attributed to former Speaker of
the House of Representatives, Thomas P. "Tip" O'Neill, but it
actually was penned first in 1932 by Byron Price, Washington
Bureau
Chief
for
the
Associated
Press.
http://www.barrypopik.com/index/new_york_city/entry/all_politics
is local.
16

Of course, Representative Scott is not an Intervenor, but
given the significant changes in composition, demography and
geography of CD3 under the remedial plan,
even he could
encounter problems.

35

opponent is and what the issues of most significance are.
the

expense

advertising,

of

maintaining

that

burden

is

campaign
a

heavy

organizations

one.

That

Given
and

burden

of

could

affect the results of the election by diverting scarce resources
to a district that ultimately was not called for by the Supreme
Court's decision.

None of this burden need be visited upon the

candidates or the electorate if we but await the Supreme Court's
resolution of the merits.
In

addressing

irreparable

expressed the view that:

injury,

"[t]he effect

has

majority

the

[of a stay] would be to

give the Intervenors the fruits of victory for another election
cycle,

even if they lose in the Supreme Court."

Supra at 12.

With respect for that view, I do not think that, on the facts of
this

case,

our

decision

on

the

request

for

a

stay

should be

influenced by concern that the 2016 election might be conducted
under the Enacted Plan if the majority decision is affirmed.

On

that

in

score,

essentially
Moreover,

we
its

must

be

current

mindful
form

that

without

CD3

complaint

respectfully am unable,

ascribe

existed
since

1999.

the Plaintiffs waited for 21 months after the Enacted

Plan was adopted until they filed this action.
I

has

any

import

to

in assessing

the

irreparable

"unwarranted

concept.

36

On this record,

fruits

injury,
of

to

victory"

C.

Harm to Other Parties
find that the possible harm to the other parties 17 does

I
not

justify the

Court

were

to

denial
stay

of

a

entry

stay.

of

a

I

recognize

remedial

plan,

that,

if the

regardless

of

whether Plaintiffs were to prevail on the merits in the Supreme
Court,

time

constraints

u.s.c.

imposed

20302,

§

by

the

arguably

federal

require

MOVE

Act,

that

the

52
2016

However,

congressional elections be run under the Enacted Plan.

the time constraints imposed on the Court and the Defendants are
a

direct

result

Complaint
enacted.

until
Two

of

Plaintiffs'

almost

two

choice

years

congressional

(if they prevail on the merits)

complaint
Plan,

I

to the
may

be

the

elections

conducted under the Enacted Plan;

election cycle.

after

to

delay

filing

plan at
have

at worst,

their

issue was

already

Plaintiffs'

been
relief

would be delayed for one more

Given that Plaintiffs did not even file their

until

long

after

the

implementation

of

the

Enacted

do not think that the additional delay represents harm
Plaintiffs or the
does

not,

in

Defendants;

my

view,

and,

whatever harm there

outweigh

the

harm

to

the

Intervenors if the remedial plan is not stayed.

17

The Defendants supported the Enacted Plan on the merits.
However, with the change of parties in the offices of Governor
and Attorney-General, they have changed sides.

37

Moreover, the potential injury to the Plaintiffs is further
mitigated by the Court's power to postpone the general elections
for

the

affected

liability

be

districts,

should

the

Normally,

affirmed.

majority's

of

course,

finding
federal

of
law

requires that congressional elections take place "on the Tuesday
next after the 1st Monday in November,
year [. ] "

2

u.s.c.

However,

7.

§

in every even numbered

Congress has provided for an

exception to this general rule where extraordinary circumstances
so require.

2

u.s.c.

§

Section 8 of Title 2 of the United

8.

States Code provides that "[t] he time for holding elections in
any

State,

District,

or

Territory

for

a

Representative

or

Delegate to fill a vacancy, whether such vacancy is caused by a
failure to elect at the time prescribed by law, or by the death,
resignation,

or

incapacity

of

a

person

may

elected,

be

prescribed by the laws of the several States and Territories."
2 U.S.C.
of

§

8.

Columbia,

circumstances,
exigent

The United States District Court for the District
applying

this

"construe[d]

circumstances

section
this

arising

under

section
prior

to

to

similar
mean
or

factual

that

where

the

date

on

established by Section 7 preclude holding an election on that
date,

a

state

may

postpone

the

38

election

until

the

earliest

practicable

Busbee

date."

v.

Smith,

549

F.

Supp.

494,

525

(1982), aff'd without opinion, 459 U.S. 1166 (1983) . 18

In

Busbee,

reapportionment
Act,

and

plan

therefore

prescribed
entered

the

order

congressional
districts,

Section

constituted

law. " 19

by

an

violated

Id.

setting

elections

in

5

of

the

"failure

to

elect

at
an

amended
of

Voting
at

Accordingly,

525.

two

Georgia's

that

concluded

court

schedule

the

affected

Rights

the
the

for

time
court

Georgia's

congressional

which delayed the general congressional elections in

Id.

those districts until November 30, a total of 28 days.

The

court recognized that imposing an altered schedule would "impose
the

burdens

state]," but

5' s

of

a

double

found

that

election
this

on

employed voters

burden was

[and the

outweighed by Section

imperative that the electoral process proceed under a

discriminatory plan.

Id.

The

Supreme Court agree with the

same

is

true

here;

Page I I majority,

non-

should the

this Court may

18

Although Busbee interpreted a prior version of this
statutory provision,
the amendments made in 2005 left the
relevant text unchanged, and therefore do not alter the analysis
as it applies to this case.
19

A footnote in a later Supreme Court case seems to
contemplate a potentially narrower definition of this phrase,
based on the legislative history of Section 8.
Foster v. Love,
522 U.S. 67, 71 n.3 (1997).
However, that case was decided in
an
entirely
distinct
factual
context,
and
provides
no
elaboration on the meaning of that phrase beyond that brief
footnote.

39

take steps to enforce its injunction prohibiting elections under
an unconstitutional plan and ensure timely implementation of an
appropriate remedy, including, if necessary, an amended schedule
for the general elections in CDs 1, 2, 3, 4, and 7.
In sum,
where,

I can find no substantial injury to the Plaintiffs

as here,

the district at issue has remained essentially

the same since 1999 and there was a lengthy delay between the
redistricting and the institution of this action. 20
On the record in this case, I think that the balance of the
equities as between the parties calls for the exercise of our
discretion to grant a stay so that the Supreme Court can decide
the merits of this case before a remedial plan is implemented.
It also is appropriate in assessing the injury to the Plaintiff
and

the

animating

balance
force

of
for

the
this

equities
case.

to

remain

In particular,

mindful
this

of

the

case was

spawned not by a citizen who felt that his or her constitutional

20

That is especially so where,
in the event of an
affirmance by the Supreme Court, we can slightly alter the
election date for CDs 1, 2, 3, 4 and 7, and have the election
conducted under the remedial plan.
At the merits stage, the
Plaintiffs sought to explain the delay in filing suit by arguing
that they could not have proceeded until after the Supreme Court
decided Shelby County.
That is not so because the prohibition
against racial gerrymandering long predated the decision in
Shelby County.
In any event, we rejected the argument in the
merits opinion.
Page v. Virginia State Bd. Of Elections, 58 F.
Supp. 3d 533, 554 n.24 (E.D. Va. 2014), vacated on other grounds
sub nom. Cantor v. Personhuballah, 135 S. Ct. 1699 (2015).

40

rights had been violated.
instance
Indeed,

of

the

Instead, this case was brought at the

National

Democratic

initial

Plaintiffs'

fee

Trust. 21

Redistricting

application

in

this

case

contains an entry showing that it was necessary to go out and
drum

up

"email

a

(ECF No.

client.

with

[redacted]

and

112-4,
local

at

6

contacts

(invoice

entry

regarding

for

finding

plaintiffs.").
I

do not suggest that an impropriety has occurred,

but

I

think those facts are pertinent in assessing how much weight to
give the assertion that the Plaintiffs have been aggrieved so
long that we should not enter a stay.

That is particularly so

considering the fact that CD3 in essentially its current shape
has

remained

month

unchallenged

delay between the

since

1999,

redistricting

and

considering

and the

filing

the

21

of

this

affirmed,

the

action.
Clearly,
Plaintiffs'

if
rights

the

majority

will

have

opinion
been

is

aggrieved

and

how

the

litigation vindicating those rights came to pass will be of no
particular importance.

But where,

as here,

the Plaintiffs did

not originate the idea of the suit and, where, as here, there is
21

See Jenna Portnoy, Virginia Redistricting Lawsuits Could
Cost
Taxpayers
Big Bucks,
WASHINGTON POST
(May 23,
2015) I
https://www.washingtonpost.com/local/virginia-politics/virginiaredistricting-lawsuits-could-cost-taxpayers-big-bucks/2015/05/
23/0e3ca55e-ffd0-lle4-833c-a2de05b6b2a4_story.html.

41

a

long delay between the alleged affront of the right and the

filing of the suit,
impose

a

brief

it is appropriate,

stay to

allow

issues by the Supreme Court,
would

result

account.

therefrom,

After all,

Supreme

Court

to

full

in deciding whether to

consideration

to

a

important

and in assessing the injury that
take

real

world

the Enacted Plan,

be

of

lawful

one,

conditions

into

if it is found by the
reflects

the

rights

of

hundreds of thousands of Virginians to elections conducted under
a

plan

drawn

respectfully

by

their

submit,

elected

must

be

representatives.

considered

in

That,

balancing

I
the

equities.
D.

The Public Interest

I respectfully submit that the public interest will best be
served
after

by
the

unsettled,

staying

implementation

Supreme

Court

of

decides

the

issues presented in this case.

plan

until

important,

the

remedial

and

quite

As shown above,

the

two key issues in this case

(the effect of using a 55% BVAP in

redistricting

proper

CD3

and

decision in Alabama)

the

application

of

the

recent

has been decided differently by two three-

j udge panels of this Court.

Five judges have split three to two

on those issues on the merits.

And, one of the key positions of

the

issue

Intervenors

partisan

on

political

the

remedy

objectives)

is

uncertainty in the Supreme Court.
42

(adherence

the

subject

to

legislative

of

substantial

The public interest will,

I

respectfully submit,

be best served by awaiting word from the

Supreme Court on these key issues, as to which two decisions of
this Court manifest significant disagreement.
Furthermore,

the

practical

denying the stay are quite grave.

consequences

to

the

public

of

Should the majority's finding

of liability be reversed on appeal,

the

implementation of the

remedial plan beforehand will mean that many thousands voters
will

have

been moved

out

of

their

current

districts

for

the

third time in less than a decade if the state is permitted to
revert to the Enacted Plan for 2018.
will

engender

foster

a

voter

confusion,

expense.
stay

reduce

disconnect between voters

create significant and avoidable

This shuffling of voters
voter

and their

participation,

legislators,

administrative

and

complexity and

With the 2016 election cycle quickly approaching,

pending

appeal

will

mitigate

the

likelihood

of

a

public

confusion during the electoral process for 2016 and potentially
2018 as well.
Finally, as explained above, there is, I think, a very real
risk of voter confusion that will be caused if,
posits,

as the majority

the Intervenors have to run campaigns in two districts.

There is no need to repeat those points here,

but,

to me,

they

counsel the issuance of a stay to foreclose the confusion that
could,

and,

in my view,

likely will,

election.
43

skew the

results of the

Furthermore,
elections

the

conducted

public

in

has

perspective

an
of

the

in

interest

guidance

orderly
of

the

Supreme Court.

In fact, we have held as much previously in this

case.

Virginia State Bd.

(E. D.

Page v.
Va.

Feb. 23,

2015).

different

landscape

principle

that,

there,

where

of Elections,

2015 WL 763997

Admittedly, we confronted a somewhat
but

important

we

recognized

relevant

the

issues

are

important
pending

before the Supreme Court, we ought to stay our hand to await the
judgment of the

Supreme Court.

I

think that

principle

fully

applies here.
For the foregoing reasons,

I would grant the Intervenors'

motion to stay entry of a remedial plan until after the Supreme
Court's resolution of the case on the merits.

Isl
Robert E. Payne

Richmond, Virginia
Date: January 7, 2016

44