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, )

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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

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