Harris v. Moon Jurisdictional Statement

    No. 96-

In The

Supreme Court of the United States

October Term , 1996 

Curtis W. Harris, etal .,
Appellants,

V.

Donald Moon, etal .,
Appellees.

O n Appeal from  the United States District 
C ourt for the Eastern District of Virginia

JURISDICTIONAL STATEMENT

J. Gerald Hebert 
Counsel o f Record 

800 Parkway Terrace 
Alexandria, VA 22302 
(703) 684-3585/3586 (fax)

Elaine R. Jones 
Director-Counsel 
Theodore M. Shaw 
Norman J. Chachkin 
Jacqueline A. Berrien 
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, NY 10013 
(212) 219-1900

Pamela S. Karlan 
580 Massie Road 
Charlottesville, VA 22903 
(804) 924-7810/7536 (Fax)

M. Laughlin McDonald 
Neil Bradley 
Maha S. Zaki 
American Civil Liberties 
Union Foundation, Inc.
44 Forsyth Street, N.W. 
Suite 202
Atlanta, GA 30303 
(404) 523-2721

Attorneys fo r  the Harris Appellants



1

Q u e s t io n s  P r e s e n t e d

1. Did the district court err in subjecting Virginia’s 
creation of a single majority-black congressional district to 
strict scrutiny?

2. Did the district court misunderstand this Court’s 
test for determining if race is the predominant motivation 
behind a reapportionment plan, when it ignored evidence that 
the configuration of the Third Congressional District was the 
product of Virginia’s actual "traditional districting princi­
ples," namely (a) partisan considerations; (b) incumbency 
protection; and (c) the Commonwealth’s unique and long­
standing policy of splitting the Tidewater area among several 
congressional districts?

3. Assuming that strict scrutiny was required, did the 
district court misinterpret this Court’s analysis in Bush v. 
Vera, 116 S.Ct. 1941 (1996), and Shaw v. Hunt, 116 S.Ct. 
1894 (1996), when it found that the Third Congressional 
District was not narrowly tailored?

4. Did the district court misunderstand the third 
prong of the test announced by this Court in Thornburg v. 
Gingles, 478 U.S. 30 (1986), when it found no legally 
significant racial bloc voting within the Third Congressional 
District by relying on evidence of black electoral success (a) 
in majority-black districts or (b) based on votes cast by white 
voters in other parts of the Commonwealth?

5. Did the district court ignore the Commonwealth’s 
contemporaneous strong basis in evidence for concluding that 
the Voting Rights Act would require creation of a majority- 
black congressional district?



11

P a r t ie s

The following were actual parties in the court below:

Donald Moon 
Robert Smith

Plaintiffs;

M. Bruce Meadows, in his official capacity as Secre­
tary of the State Board of Elections

Defendant;

Curtis W. Harris 
Jayne W. Barnard 
Jean Patterson Boone 
Raymond H. Boone 
Willie J. Dell 
Henry C. Garrard, Sr. 
Walter J. Kenney, Sr. 
Melvin R. Simpson 
Gerald T. Zerkin

Defendant-Intervenors.



I l l

T a b l e  o f  C o n t e n t s

Page

Questions Presented ...........................................................  i

Parties in the Court Below ...............................................  ii

Table of Contents ................................    iii

Table of Authorities ..........................................................   iv

Opinion Below ...................................   1

Jurisdiction .........................................    2

Statutory Provisions ....................     2

Statement of the Case ............................................ ..  2

The Questions Presented Are Substantial . . . . . . . .  12

I. Race was not the predominant factor in 
the creation and configuration of the 
Third District ...............................................    15

A. The Commonwealth’s section 5 submission
submission provides no evidence of racial 
predominance ...............................................  15

B. The Commonwealth’s concern to avoid retro­
gression in amending the 1991 plan provides 
no evidence of racial predominance in the
initial adoption of the plan ...................................... 16

C. Race was only one of a constellation of
factors in the creation of the Third District . . .  18



IV

II. The Third District satisfies even strict scrutiny 
because it is an appropriate response to Virginia’s 
obligations under section 2 of the Voting 
Rights Act .........................................   24

A. Virginia had a strong basis in evidence for 
believing there was legally significant white 
bloc voting within the area where it located
the Third D is tr ic t ................................    26

B. The Third District satisfies this Court’s 
requirement that a remedial district be 
located where the potential section 2
violation is found . . . . . . . . . . . . . . . . . .  28

Conclusion . . . .  ............................................   30

Appendix ...........................................................   A-l



V

T a b l e  o f  A u t h o r it ie s

Pages
Cases

Beer v. United States, 425 U.S. 130 (1976) ..................  15

Brown v. Saunders, 159 Va. 28 ( 1 9 3 2 ) ............ 19,21

Bush v. Vera, 116 S.Ct. 1941 (1996) . 12,13,18,26,29,30

City of Mobile v. Bolden, 446 U.S.
55 (1980) . . . . . . . . . . . . . . . . . . . . . . . . .  18

City of Petersburg v. United States, 354 F.
Supp. 1021 (D.D.C. 1972), a ff’d, 410
U.S. 962 (1973) . ................................... .. ....................  6

City of Richmond v. United States, 422 
U.S. 358 (1975)   6

Collins v. City of Norfolk, 883 F.2d 1232 
(4th Cir. 1989), cert, denied, 498 U.S.
938 (1990)     6

Davis v. Bandemer, 478 U.S. 109 (1986) . . . . . . . .  18

First Virginia Bank v. Commonwealth, 212 
Va. 654 (1972)    .2 0

Gaffney v. Cummings, 412 U.S. 735 (1 9 7 3 ).................. 10

Gingles v. Edmisten, 590 F. Supp. 345 (E.D.
N.C. 1984), a ff’d, 478 U.S. 30 (1986) . . . . . . . . .  27

Harman v. Forssenius, 380 U.S. 528 (1 9 6 5 ) .................. 7



VI

Harris v. City of Hopewell, No. 82-0036-R 
(E.D. Va. Jan. 5, 1983) ...............................................  . 7

Jamerson v. Womack, 244 Va. 506 (1992) . .4,8,21-22,24

Karcher v. Daggett, 462 U.S. 725 (1983) . . .  3,19

McDaniels v. Mehfoud, 702 F. Supp. 588 
(E.D. Va. 1988) ..............  ............... .. ..........................  6

Miller v. Johnson, 115 S.Ct. 2475 (1995) . . . 12,18

Personnel Administrator of Massachusetts 
v. Feeney, 442 U.S. 256 (1979) . . . . . . . . . . . . .  17

Reno v. Bossier Parish School Bd.,
65 U.S.L.W . 4308 (May 12, 1997) ............... 15,25

Shaw v. Reno, 509 U.S. 630 (1993) . . . . .  10,12,13,22

Shaw v. Hunt, 116 S.Ct.
1894 (1996) ................................. 12,13,16,24,26,27,28,29

State Corporation Comm’n v. Camp, 333 
F. Supp. 847 (E.D. Va. 1971) ....................................20

Thornburg v. Gingles, 478 U.S. 30 (1986) . . 4,25

United States v. City of Newport News, Civ.
No. 4-94CV155 (E.D. Va. Nov. 4, 1994) . . . . . . .  7

Wesberry v. Sanders, 376 U.S. 1 (1964) ........................  19

Constitutional and Statutory Provisions

U.S. Const, amend XIV ..................... .. .............................  2



V ll

28 U.S.C. § 1253 ............................................  2

Voting Rights Act of 1965, § 2 
42 U.S.C. § 1973 ............................................  2,4,12,25

Voting Rights Act of 1965, § 5 
42 U.S.C. § 1973c ................................... ..  2,15,16

Va. Const. Art. II, § 6 ....................... ....................... ... . 21

1991 Va. Acts of Assembly, Special 
Session II, Ch. 6 .......................... ....................... ..  2

1993 Va. Acts of Assembly, Ch. 983 .............................  2

Other Authorities

Congressional Quarterly’s Politics in 
America 1994, (P. Duncan ed. 1994) .................  11

Richard H. Pildes & Richard G. Niemi,
Expressive Harms, "Bizarre Districts, " and
Voting Rights: Evaluation Election-District
Appearances After Shaw v. Reno, 92
Mich. L. Rev. 483 (1993) .................... .......................  11

Peter Schuck, The Thickest Thicket: Partisan 
Gerrymandering and Judicial Regulation o f 
Politics, 87 Colum. L. Rev. 1325 (1987) . . . . . . .  10

Virginia Senate Committee on Privileges 
and Elections, Resolution No. 1
(Feb. 22, 1991) .................................................. 4-6,19

1984-1985 Op. Atty Gen. Va. 128 (Oct.
4, 1984) ............................................................. ..  20



No. 96-

In The

Supreme Court of the United States

October Term , 1996 

Curtis W. Harris, etal .,
Appellants,

V.

Donald Moon, etal .,
Appellees.

On Appeal from the United States District 
Court for the Eastern District of Virginia

JURISDICTIONAL STATEMENT

O p in io n  B e l o w

The February 7, 1997, opinion of the three-judge district 
court is contained in the Appendix to the Jurisdictional 
Statement filed in No. 96-1779, Meadows v. Moon1 [hereaf­
ter "Moon J.S. App."], at pages 3-33; it is reported at 952 F. 
Supp. 1141 (E.D. Va. 1997), and is also available on LEXIS 
at 1997 U.S. Dist. LEXIS 1560. The district court’s order 
dated February 7, 1997, granting declaratory and injunctive 
relief is contained in the Moon J.S. App. at pages 1-2.

1 M. Bruce Meadows is the Secretary o f the Virginia State 
Board of Elections. He was sued in his official capacity. The 
appellants in this appeal are a group of private citizens who live 
within the challenged Third Congressional District. They participated 
as defendant-intervenors in the litigation below.



2

Ju r is d ic t io n

The district court entered judgment on February 7, 
1997, See Moon J.S. App. at 1-2. Appellants filed their 
Notice of Appeal to this Court on March 7, 1997. That 
notice is contained in the Appendix to this Jurisdictional 
Statement at pages A-l to A-2 [hereafter Harris J.S. A pp."]. 
On May 1, 1997, Chief Justice Rehnquist granted appellants’ 
request for an extension of time to and including May 30, 
1997, to file their Jurisdictional Statement. No. A-767, This 
Court has jurisdiction under 28 U.S.C. § 1253.

C o n s t it u t io n a l  a n d  St a t u t o r y  
P r o v is io n s  In v o l v e d

This case involves the equal protection clause of the 
Fourteenth Amendment, which is reprinted in Moon J.S. 
App. at 38; sections 2 and 5 of the Voting Rights Act of 
1965 as amended, 42 U.S.C. §§ 1973 and 1973c, which are 
reprinted in Moon J.S. App. at 40, 53-55; and two Virginia 
statutes — 1991 Va. Acts of Assembly, Special Session II, 
Ch. 6, and 1993 Va. Acts of Assembly, Ch. 983, which are 
reprinted in Moon J.S. App. at 60-78.

St a t e m e n t  o f  t h e  C a s e

This case involves a constitutional challenge to Vir­
ginia’s 1991 congressional apportionment.2 The plaintiffs

2 The plan enacted in 1991 was the subject of "technical" 
amendments in 1992 and 1993 intended to "reduce the number of split 
precincts for localities and to conform the lines to new local precincts 
and new local and state legislative election district lines." Joint 
Exhibits at 1691 [hereafter "Jt. Exh."]. Most of these changes were 
"initiated by local requests," connected with the ease of electoral



3

(appellees in this Court) are two voters who live within the 
Third Congressional District. They challenged the plan as an 
unconstitutional racial gerrymander.

According to the 1990 census, Virginia’s total population 
was 6,187,358, of whom 1,162,994 (18.8%) were black. 
Most of the Commonwealth’s black residents (59.17%) lived 
in majority-black census blocks; nearly one quarter (24.29%) 
lived in census blocks that were more than 90% black. By 
contrast, more than one third of Virginia’s non-black resi­
dents (34.31%) lived in a census block that did not contain 
a single African American. See Declaration of William S. 
Cooper f t  8,9 (Attachment 22 to Defendant-Intervenors’ 
Brief in Opposition to Motion for Summary Judgment).

The 1990 census resulted in Virginia receiving one 
additional House seat, bringing the size of its congressional 
delegation to eleven. Thus, Virginia had the duty not simply 
to readjust boundary lines between districts to respond to 
population shifts, but actually to create at least one complete­
ly new congressional district, thereby necessarily altering 
many of the Commonwealth’s other districts as well.

The 1991 apportionment took place under four condi­
tions that had not obtained in prior reapportionment cycles. 
First, this Court’s intervening decision in Karcher v. Dag­
gett, 462 U.S. 725 (1983), required near-absolute population 
equality among districts. This requirement would inevitably 
force the Commonwealth to relax any policy of trying to 
avoid splitting political subdivisions.3 Second, Congress’

administration, see id. at 1715.

Indeed, the population deviations in Virginia’s 1981 apportion­
ment plan — which had fewer subdivision splits than its 1991 plan — 
were far larger than the deviations in the New Jersey congressional



4

intervening amendment of section 2 of the Voting Rights Act 
of 1965, 42 U.S.C. § 1973, and this Court’s decision in 
Thornburg v. Gingles, 478 U.S. 30 (1986), meant that even 
an apportionment plan that was not purposefully discriminato­
ry or retrogressive might nonetheless violate federal law if it 
resulted in a dilution of the voting strength of a geographical­
ly compact, politically cohesive group of black voters. As a 
matter both of the Supremacy Clause and of positive state 
law, Virginia had an obligation to avoid violating amended 
section 2. See Jamerson v. Womack, 244 Va. 506, 511 
(1992). Third, Virginia’s 1991 redistricting would be the 
first in a generation where one political party (the Demo­
crats) controlled both the General Assembly and the gover­
norship, thus offering an opportunity for largely uncon­
strained political gerrymandering. Fourth, computer technol­
ogy and more finely honed census data allowed for far finer 
line drawing — with attendant boundary irregularities — than 
had been possible in 1980 or before. See Trial Tr. at 326-28 
[hereafter "Tr."].

Before beginning the reapportionment process, the 
Senate Committee on Privileges and Elections adopted a 
resolution ("Resolution No. 1"), setting out five "criteria" 
and four "policy considerations" that redistricting plans ought 
to achieve. Jt. Exh. 1. The five criteria were mandatory, 
while the four policy "considerations" were simply that — 
factors the assembly should weigh in the redistricting process 
to the extent they did not interfere with the criteria. See 
Jamerson, 244 Va. at 514 (explaining, as a matter of state 
law, the difference between constitutionally compelled 
criteria and policy considerations).

The first criterion was "[ejqual [representation," by

apportionment that triggered Karcher’s requirement of heightened 
scrutiny.



5

which the senate meant equal population for each district, ft. 
Exh. 1. The second criterion was "[mjinority [representa­
tion, which the senate defined to mean that " [d] istrict plans 
shall not dilute minority voting strength and shall comply 
with §§ 2 and 5 of the Voting Rights Act." Id. (emphasis 
added). The third criterion was compactness, which was 
defined in the following terms:

Districts shall be reasonably compact. Irregular 
district shapes may be justified because the district 
line follows a political subdivision boundary or 
significant geographic feature.

Id. at 2. The fourth criterion was contiguity, and here the 
senate provided that

Contiguity by water is acceptable to link territory 
within a district in order to meet the other criteria 
stated herein and provided that there is reasonable 
opportunity for travel within the district.

Id. The final criterion was "[political [fairness"; it provid­
ed that a districting plan was unacceptable if it had "the 
purpose and effect of denying any group of persons who 
share a common political association a fair opportunity to 
participate in the political process." Id.

The four "policy considerations" were, first, that plans 
should be drawn so as to avoid splitting political subdivisions 
"to the extent practicable"; second, that consideration be 
given "to preserving communities of interest"; third, that 
precincts serve as the basic building block for districts when 
it might be necessary to split political subdivisions; and 
fourth that "existing districts and incumbency" might be 
taken into account. Id.



6

At least during this century, Virginia had never had a 
majority-black congressional district, and no black candidate 
had been elected to Congress. In 1986, Bobby Scott — a 
popular black state senator who represented a predominantly 
white state senate district — had run for Congress as the 
Democratic nominee from the First Congressional District, 
but had lost, receiving less than 8 percent of the white votes 
cast. See Moon J.S. App. at 84. In light of the Common­
wealth’s substantial (and geographically concentrated) black 
population, the continuing prevalence of racial bloc voting, 
pressure from a politically active black community, and the 
Voting Rights Act’s requirements, there was widespread 
agreement among all the participants in the redistricting 
process that the Commonwealth should draw a majority-black 
district if it could be done without sacrificing other important 
state interests.

There was a strong contemporaneous basis in evidence 
for this consensus. Members of the General Assembly were 
aware of the facts surrounding the Bobby Scott congressional 
campaign, as well as of the fact that Scott was the sole black 
state legislator — in either house — to have been elected from 
a majority-white jurisdiction at any time in the 1980’s. They 
were aware as well of a series of judicial findings of racial 
bloc voting in the Richmond, Petersburg, Tidewater, and 
Southside regions stretching back to City o f Petersburg v. 
United States, 354 F. Supp. 1021, 1025-26 (D.D.C. 1972), 
a ff’d, 410 U.S. 962 (1973), and City o f  Richmond v. United 
States, 422 U.S. 358 (1975), and extending to the present 
day, see, e.g., Collins v. City o f Norfolk, 883 F.2d 1232 (4th 
Cir. 1989), cert, denied, 498 U.S. 938 (1990); McDaniels v. 
Mehfoud, 702 F. Supp. 588 (E.D. Va. 1988) (Henrico 
County). In addition, since the 1981 round of redistricting, 
many communities within those regions had settled section 2 
vote dilution lawsuits and had agreed to draw majority-black 
districts. See, e.g., United States v. City o f Newport News,



7

Civ. No. 4-94CV155 (E.D. Va. Nov. 4, 1994) (consent 
decree); Harris v. City o f Hopewell, No. 82-0036-R (E.D. 
Va. Jan. 5, 1983). These settlements had been approved by 
local federal courts and precleared by the Department of 
Justice. Moreover, members were aware of the presence of 
many of the other "Senate Report" factors on which courts 
rely in assessing section 2 claims — such as Virginia’s long 
history of official racial discrimination touching on the right 
to vote, see, e.g., Harman v. Forssenius, 380 U.S. 528 
(1965); vast socioeconomic disparities between blacks and 
whites; and the virtual inability of black candidates to get 
elected in majority-white jurisdictions. In fact, Bobby Scott 
and Governor L. Douglas Wilder were the only examples in 
the twentieth century of black candidates successfully 
winning major office from majority-white constituencies.

As experienced politicians, members of the General 
Assembly were aware of the special circumstances and 
advantages both men had enjoyed, including multiple white 
candidates in their early elections, Tr. at 302; incumbency (in 
Scott’s later race), see id. at 304; the presence of a coattail 
effect from a popular running mate and predecessor (in 
Wilder’s races for Lieutenant Governor and Governor, 
respectively), Jt. Exh. 2065-69; unusually high black turnout, 
PI. Exh. 22; Def. Exh. 1; Tr. 436-40; and the salience of 
abortion as a wedge issue in Wilder’s gubernatorial race. 
And political data before them showed that Wilder’s white 
support was substantially weaker in the very areas where a 
black district would be created. He got a lower percentage 
of the vote in white precincts in the area where the Third 
District was located than he got statewide. See Tr. at 434; 
Def. Exh. 1. Even though Virginia did not face direct 
pressure from the Department of Justice, see Moon J.S. App. 
at 20-21, the General Assembly knew, at the time it drew the 
1991 plan, that there was a substantial likelihood of a 
successful section 2 lawsuit if it failed to draw a single



8

majority-black district in a state that was nearly 20% black. 
Mary Spain, counsel to the Privileges and Elections Commit­
tee, had specifically advised its members of the relevant 
requirements under the Voting Rights Act, including the issue 
of whether a majority-black district was required. See, e.g., 
Jt. Exh. 14-A, at 9-10; Tr. at 237-38.

Every plan considered on the floor of the General 
Assembly — whether proposed by Democrats, Republicans,4 
or nonpartisan groups -  contained at least one majority-black 
district. Moon J.S. App. at 6. All of the plans located their 
majority-black district in roughly the same areas. The most 
plausible plans extended from Richmond in the center of the 
Commonwealth towards the Tidewater area — a distance of 
approximately 100 miles and well within the traditional size 
and extent of Virginia’s congressional and legislative dis­
tricts. See Tr. at 339; Jamerson, 244 Va. at 509 (approving, 
as compact within the meaning of Virginia’s constitutional 
requirements, state senatorial districts that stretched 145 and 
165 miles from west to east).

Some of the proposed majority-black districts were more 
compact than the district ultimately chosen. See, e.g. Moon 
J.S. App. at 80; Tr. at 347-48. But these districts had 
unacceptable side effects. Some of the side effects are 
familiar to this Court from other cases — for example, plans 
placed more than one incumbent in the same district or 
caused politically undesirable ripple effects in adjoining 
districts, see, e.g., Tr. at 349, 351. These sorts of effects 
are fairly typical of any plan that seeks to create a new 
district, rather than simply to adjust the boundaries of pre­

4 Evidence at trial suggests that one Republican-sponsored plan 
created a majority-black district largely as cover for an attempt to 
strip white Democratic incumbents of their constituencies. See Tr. at 
224-27.



9

existing districts.

But there was one side effect that needs to be highlight­
ed, for it makes Virginia unique among the states whose 
reapportionment plans have come before this Court. Much 
of Virginia’s economy depends on defense spending. In 
particular, military installations and contractors are the 
economic lifeblood of the Hampton Roads area. The 
installations are located relatively close together. Someone 
unfamiliar with the realities of congressional politics might 
propose the creation of a geographically compact district 
containing these various facilities. But Virginia has a 
longstanding policy of taking precisely the opposite approach, 
and dividing the Tidewater region among more than one 
district. Virginia concluded, from long experience, that it 
benefits the Commonwealth to locate military facilities in a 
number of districts, thereby increasing the number of 
representatives with bases in their districts who serve on 
relevant House committees. For example, during public 
hearings on the various proposed plans, Delegate Melvin 
raised the concern that Norfolk Naval Shipyard and Newport 
News Shipbuilding "not be in the same district," Jt. Exh. 14- 
D at 27, and Delegate Cooper explained that it was "crucial" 
to "mak[e] sure we have enough congressional voice" by 
making sure "some shipyards are in the third" while other 
facilities were in other districts, Id. at 39-40. See also Tr. 
at 241-42; 251-52; 343-44; 346. Moreover, it was especially 
important, given Congress’ direct control over military 
spending, to preserve the seniority of various representatives 
who served on Armed Forces Subcommittees, such as First 
District Rep. Herb Bateman (R-Newport News); Second 
District Rep. Owen Pickett (D-Virginia Beach); and Fourth 
District Rep. Norman Sisisky (D-Petersburg).

Thus, in the very area of the state where there was a 
heavy concentration of black voters that would necessarily be



10

one building block of any majority-black district, Virginia 
had traditional districting principles that militated against a 
mechanical quest for compactness. Put simply, fetishistic 
adherence to abstract topological compactness would subordi­
nate the Commonwealth’s "traditional districting principles." 
Since Virginia conducted its reapportionment before this 
Court’s decision in Shaw v. Reno, 509 U.S. 630 (1993) 
[Shaw I \ , and the existing case law suggested that compact­
ness was in no sense a federal constitutional requirement, 
see, e.g., Gaffney v. Cummings, 412 U.S. 735, 752 (1973), 
the General Assembly had no reason to hesitate in trading off 
some measure of geographic compactness in order to more 
fully realize a constellation of other goals.

The tradeoff was a logical necessity since "[mjore 
constraints [in the districting process] imply fewer possible 
solutions," Peter Schuck, The Thickest Thicket: Partisan 
Gerrymandering and Judicial Regulation o f Politics, 87 
Colum. L. Rev. 1325, 1335 (1987). The General Assembly 
split the city of Newport News, for example, because the city 
was home to both a powerful incumbent (Bateman) and the 
most likely candidate for the new seat (now-Rep. Bobby 
Scott). See Tr. at 264. Other irregularities were the product 
of desires to preserve Representative Sisisky’s base in 
Petersburg and Representative Bliley’s base in Richmond. 
See Tr. at 349, 359.

But the legislature did not sacrifice regularity of bound­
aries more to create the Third District than it did for entirely 
non-racial reasons in other regions of the Commonwealth. 
In Northern Virginia, for example, the Democratic-controlled 
assembly created a second new district. (It managed to 
create a second open district by taking then-Representative 
George Allen, a Republican who represented a district in the 
center of the Commonwealth, out of his district and relocat­
ing him into the district of a more senior Republican incum­



11

bent. See Tr. at 359.) The new district, which was purpose­
fully drawn to give the Democrats an opportunity to pick up 
a seat, was extremely irregular, having a "shape that vaguely 
recalls the human digestive tract." Congressional Quarterly’s 
Politics in American 1994, at 1602 (P. Duncan ed. 1994).5 
With respect to dispersion scores — one standard measure of 
compactness -  both the First and the Ninth Districts were 
more irregular than the Third District. See Tr. at 133.

Similarly, the newly drawn Third Congressional District 
was more compact than at least one district that had been 
used in the 1981 reapportionment plan, despite the fact that 
the 1981 plan as a whole was more compact than the 1991 
plan.6 See Richard H. Pildes & Richard G. Niemi, Expres­
sive Harms, "Bizarre Districts," and Voting Rights: Evalua­
tion Election-District Appearances After Shaw v. Reno, 92 
Mich. L. Rev. 483, 573 (1993). And in even earlier 
apportionments, congressional districts had stretched from 
Richmond to Williamsburg and from a Richmond suburb to 
Hampton, Virginia Beach, and the Eastern Shore. See Tr. at 
339, 376-77.

Nor did the 1991 plan either unnecessarily "pack" black 
voters into the Third District or "maximize" black representa­
tion. The plan left several pockets of black voters in 
adjacent white districts, rather than extending the Third 
District’s boundaries to encompass them. Tr. at 361. And

5 The shape of the Eleventh District is in no sense a product of 
the shape of the Third District. The two districts are separated from 
each other by parts of several other districts.

6 For example, in the post-1980 plan, the majority-white First 
District was contiguous only across water; to get from one part of the 
district to another on land required going through the Second District. 
Tr. at 129.



12

it contained fewer black voters than many of the alternative 
plans, including some plans that were arguably more com­
pact. See Jt. Exh. 7, Attachment 15, at 14-15. Moreover, 
although there were alternative plans that proposed two 
majority-black districts, giving blacks rough proportionality 
(18.18% of the districts with 18.8% of the population), or 
proposed a heavily black "influence" district in addition to a 
majority-black seat, see id ., the legislature squarely rejected 
these suggestions in favor of a plan that better accommodated 
the constellation of state interests involved in reapportion­
ment.

The Questions Presented Are Substantial

This case raises important questions regarding how 
courts should evaluate claims of overly race-conscious 
redistricting under the equal protection clause. This Court’s 
decisions in Shaw v. Reno, 509 U.S. 630 (1993) [Shaw 7], 
Miller v. Johnson, 115 S.Ct. 2475 (1995), Shawv. Hunt, 116 
S.Ct. 1894 (1996) [Shaw II], and Bush v. Vera, 116 S.Ct. 
1941 (1996), set out a two-stage process for analyzing such 
claims. In the first stage, a plaintiff bears the burden of 
showing that "race was the predominant factor" behind the 
challenged plan. Miller, 115 S.Ct. at 2488. To show that 
race was "predominant" requires showing that the legislature 
"subordinated traditional race-neutral districting principles ... 
to racial considerations." Id. In sum, the first stage is 
comparative. It requires a court to ask whether race was 
more important than other factors in the districting process.

In the second stage, which a court reaches only if the 
plaintiff has met this burden, the question is whether the plan 
"can be sustained nonetheless as narrowly tailored to serve a 
compelling governmental interest." Id. at 2482. Among the 
interests this Court has found compelling is compliance with 
section 2 of the Voting Rights Act, 42 U.S.C. § 1973. See



13

Vera, 116 S.Ct. at 1969 (O’Connor, J., concurring); id. at 
1975 (Stevens, J., joined by Ginsburg & Breyer, JJ., 
dissenting); id. at 2007 (Souter, J., joined by Ginsburg & 
Breyer, JJ., dissenting). A state meets its burden of justify­
ing the challenged district if it shows (1) that it had a "strong 
basis in evidence" to believe that creation of a majority-black 
district was necessary to comply with section 2, see, e.g., 
Vera, 116 S.Ct. at 1960 (opinion of O ’Connor, J.); Shaw I, 
509 U.S. at 656, and (2) that the district it drew both is 
"reasonably" compact, see Vera, 116 S.Ct. at 1961 (opinion 
of O ’Connor, J.), and "substantially addresses the § 2 
violation," Shaw II, 116 S.Ct. at 1907.

The district court botched both stages of this inquiry. 
The district court never should have applied strict scrutiny in 
the first place because Virginia did not subordinate its 
traditional redistricting principles to race. In contrast to 
other states whose plans have come before this Court, 
Virginia has a well-established, hierarchically organized set 
of redistricting principles. These principles take into account 
Virginia’s distinctive interests and reflect a particularized 
conception of "compactness" and "contiguity" that respects 
the Commonwealth’s geography. But the district court 
discarded Virginia’s actual principles in favor of inventing its 
own notions of what compactness requires. Having misun­
derstood both the historical practices and contemporary 
realities, the district court got things exactly backward: it 
failed to see that the Third District was the product of a 
process in which incumbency, partisanship, and the desire to 
preserve a large and influential Tidewater delegation all 
played a more significant role than race.

Moreover, even if the district court had been correct in 
its decision to apply strict scrutiny, its consideration of 
whether the Third District was narrowly tailored to achieve 
a compelling state interest was infected by a series of legal



14

and factual errors. With regard to the question whether the 
state had reason to fear a a meritorious section 2 lawsuit, the 
court completely misapplied the third Gingles factor, which 
asks whether there is outcome-determinative white bloc 
voting. Because the district court mangled the third prong of 
Gingles, it failed to comprehend Virginia’s strong basis in 
evidence for drawing a majority-black district.

As for narrow tailoring, here too the district court’s 
opinion misapplied the relevant legal standard to a misunder­
stood set of facts. In Shaw II, this Court explained that 
narrow tailoring means that the "remedial district" should be 
located in the region of a state where the potential section 2 
violation can be shown. See 116 S.Ct. at 1906-07. The 
Third District is located in precisely such a place. It 
connects jurisdictions with persistent, well-known, and often 
judicially recognized racial bloc voting. The district court’s 
finding to the contrary rested entirely on its conclusion that 
not every jurisdictions that had been sued was within the 
Third District and that some jurisdictions were only partially 
within the district. This conclusion fails to appreciate, first, 
that the Third District is located entirely within areas where 
repeated voting rights problems occurred, and second, that 
the parts of the jurisdictions that were put within the Third 
District were precisely the parts where the victims of the 
section 2 violations lived.

Finally, even if the district court had reached the right 
result for the wrong reasons, its decision still warrants full 
consideration by this Court. The district court’s numerous 
legal and factual errors threaten to infect the remedial 
process, and this Court should correct them in order to make 
sure both that the district court does not improperly intrude 
on the Commonwealth’s districting prerogatives and that the 
vital interests of Virginia’s black citizens are properly taken 
into account.



15

I. Race was not the predominant factor in the
creation and configuration of the Third District

The district court’s conclusion that race predominated in 
the creation of the Third District rests on three premises. 
First, the court believed that the Commonwealth "admit[ted] 
as much" in the course of obtaining section 5 preclearance. 
Moon J.S. App. at 11. Second, the court saw direct evidence 
of legislative intent in documents prepared in the course of 
responding to changes proposed by the Governor and making 
technical amendments to the 1991 plan. See Moon J.S. App. 
at 12-13. Finally, the district court inferred from the shape 
of the Third District that race had predominated over 
traditional districting principles of compactness, keeping 
political subdivisions intact, and respecting communities of 
interest. See Moon J.S. App. at 14-18. None of these 
premises stands up to careful examination.

A. The Commonwealth’s section 5 submission 
provides no evidence of racial predominance

With regard to the district court’s reliance on statements 
made by the Commonwealth during the preclearance process, 
as this Court has made clear, the sole question to be an­
swered in a section 5 preclearance proceeding is whether the 
proposed change will have a racially discriminatory purpose 
or effect. See Reno v. Bossier Parish School Bd., 65 
U.S.L.W . 4308 (May 12, 1997); Beerv. United States, 425 
U.S. 130, 141 (1976). Thus, the central focus of a section 
5 inquiry is on the racial fairness of the plan, and not on 
whether or how it responds to non-racial concerns. To 
obtain preclearance, a state simply must focus on how its 
plan fully respects black voting strength. Discussions of the 
extent to which a plan serves a state’s interests in incumbent 
protection, delegation seniority, boundary regularity, or any 
other non-racial factor are relevant only to the extent that



16

they might explain why a state declined to draw a particular 
majority-black district. Cf. Shaw II, 116 S.Ct. at 1904 
(relying on the North Carolina General Assembly’s explana­
tions for why it had not drawn a second majority black 
district as persuasive evidence of a lack of discriminatory 
purpose). Contrary to the district court’s view, it is not the 
slightest bit " [s]trikin[g]," Moon J.S. App. at 11, that the 
Commonwealth did not discuss its consideration of non-racial 
factors in its redistricting process. Given the primacy of 
legislative authority over redistricting, those factors were 
frankly none of the Justice Department’s business, as long as 
they did not prevent the Commonwealth from treating blacks 
fairly. Since Virginia’s plan fully respected minority voting 
strength, and it felt no pressure to "maximize" black voting 
power, Moon J.S. App. at 20 — unlike Georgia or North 
Carolina — the Commonwealth quite properly saw no need to 
justify its choices with regard to other considerations.

B. The Commonwealth’s concern to avoid retro­
gression in amending the 1991 plan provides 
no evidence of racial predominance in the 
initial adoption of the plan

Similarly, the district court’s reliance on statements 
made after enactment of the 1991 plan to show a predominant 
racial purpose misapprehends the evidence. Having received 
preclearance for the 1991 plan, Virginia was under a section 
5 obligation not to make any retrogressive changes. Thus, 
it was entirely proper for the General Assembly to provide 
that technical adjustment should not reduce the black popula­
tion within the Third District. See Moon J.S. App. at 12. 
That section 5 requires attention to race in making changes 
logically says nothing about whether the plan being changed 
was overly race-conscious. The internally inconsistent nature 
of the district court’s analysis is illustrated by its treatment of 
the 1992 and 1993 amendments. Here is what the district



17

court said:

Although a primary reason for adjusting the dis­
tricting plan’s boundaries before the 1992 and 1994 
elections was to reduce the number of split pre­
cincts in the plan, the technical amendment resulted 
in an increase in the Black percentage of the total 
population to 64.08% and the Black percentage of 
the voting age population to 61.24% in District 3.

Moon J.S. App. at 13 (emphases added). Even to call the 
increased black percentage de minimis — let alone a purpose­
ful attempt to enhance black voting strength — would 
exaggerate its magnitude: the amendments increased the black 
percentage of the voting-age population by 0.07 percent. 
Given this infinitesmal effect, it makes no sense to say that 
race played a predominant role in the 1992 and 1993 bound­
ary changes. As as the district court itself recognized, the 
primary purpose of the amendments was to avoid precinct 
splits — precisely the state interest it later identifies as one 
the plan seemed to subordinate. The change in black 
percentage within the district was a byproduct, a "result," of 
this entire legitimate purpose. Cf. Personnel Administrator 
o f Massachusetts v. Feeney, 442 U.S. 256, 279 (1979) 
("discriminatory purpose" implies more than "awareness of 
consequences"; it implies that an action was taken "at least 
in part ‘because o f,’ not merely ‘in spite o f,’" its adverse 
effects). If the 1992 and 1993 changes were explicable for 
non-racial reasons, then as a matter of pure logic they cannot 
provide probative evidence that the 1991 plan had a predomi­
nantly racial motivation.



18

C. Race was only one of a constellation of fac­
tors in the creation of the Third District

This Court has clearly recognized "the presumption of 
good faith that must be accorded legislative enactments" 
regarding the sensitive subject of redistricting, Miller, 115 
S.Ct. at 2488. Of course, the Virginia General Assembly 
was aware of the racial composition of the districts it drew 
and it intended to create a majority-black district. But that 
intention is not enough to trigger strict scrutiny. Rather, 
strict scrutiny becomes appropriate only if the plaintiff proves 
that "the legislature subordinated traditional race-neutral 
districting principles, including but not limited to compact­
ness, contiguity, respect for political subdivisions or commu­
nities defined by actual shared interests, to racial consider­
ations." Id.

The logical starting point for this inquiry, then, is to ask 
what a state’s traditional districting practices in fact are, 
since it is otherwise impossible to determine whether race 
outweighed them. States "may avoid strict scrutiny by 
retaining their own traditional districting principles," Vera, 
116 S.Ct. at 1961 (emphasis added). The equal protection 
clause provides no warrant for courts to decide, as a matter 
of "gauzy sociological considerations," City o f Mobile v. 
Bolden, 446 U.S. 55, 75 n.22 (1980) (plurality opinion), 
what districting principles a state should have.7 Only once 
a court properly comprehends a state’s actual practices is it

7 For example, if a state had a traditional, politically motivated 
practice of splitting urban areas among districts in order to maximize 
suburban influence, cf. Davis v. Bandemer, 478 U.S. 109 (1986) 
(Indiana repeatedly split Marion County among several districts in 
each of which its voters formed a minority), then a court could infer 
nothing about the predominance of race from the fact that a plan split 
cities.



19

in the position to ask whether achievement of nonracial goals 
was improperly sacrificed to create a majority-black district.

One of the most striking aspects of the district court’s 
decision is its failure even to cite or mention, let alone 
address, Virginia’s list of redistricting principles.

Unlike the other states whose plans have come before 
this Court, Virginia had articulated a well-developed set of 
redistricting principles. Resolution No. 1, which essentially 
codified state constitutional law and practice extending in part 
back to the 1930’s,8 not only listed a series of mandatory 
"criteria" and subordinate, less binding "considerations," but 
also defined what Virginia meant by such terms as "compact­
ness" and "contiguity." See supra page 5. As a matter of 
positive state law, Virginia viewed avoiding the dilution of 
minority voting strength as of equal importance with three 
other mandatory criteria — ensuring equal population, and 
achieving reasonable compactness and contiguity. And it 
thought that avoiding dilution was more important than five 
considerations, including keeping political subdivisions intact,

8 Although Virginia adhered to a loose equal population standard 
as long ago as Brown v. Saunders, 159 Va. 28 (1932), it had a long 
and sorry history of racial discrimination touching the right to vote 
that had only recently been repudiated. It would be cruelly perverse 
to conclude that the fact that racial fairness is a relative latecomer to 
the list makes it less a "traditional" districting principle.

Moreover, the relative elevation over time of equal population 
to primacy of place on any list of redistricting criteria necessarily 
subordinates other districting principles. Thus, it makes no sense to 
compare the number of split political subdivisions today to those in 
plans prior to 1983, and Karcher v. Daggett, 462 U.S. 725 (1983), 
let alone those that antedated Wesberry v. Sanders, 376 U.S. 1 (1964). 
In Virginia, congressional districts can no longer be built exclusively 
out of intact jurisdictions.



20

preserving communities of interest, and protecting incum­
bents. Nothing in this Court’s jurisprudence undermines 
Virginia’s full authority to adopt and rank the potential 
districting principles as it did.

There is not even a scintilla of evidence in the record 
from which a court could conclude that race predominated 
over either equal representation or contiguity. As to the 
former, the total percentage deviation of the 1991 plan was 
40 persons, producing a total percentage deviation of 0.00%, 
see Moon J.S. App. at 79. Race clearly did not predominate 
over equal representation.

Nor, given Virginia’s longstanding definition of contigu­
ity, did race subordinate contiguity. As a matter of Virginia 
law, territory connected only by water is contiguous. See, 
e.g . , State Corporation Comm’n v. Camp, 333 F.Supp. 847, 
851 (E.D. Va. 1971) (holding that Norfolk is contiguous with 
Hampton and observing that the General Assembly’s aware­
ness of "the many rivers separating cities and counties in 
Virginia is a foregone conclusion. They are, indeed, natural 
geographic boundaries for cities and counties throughout 
Virginia"); First Virginia Bank v. Commonwealth, 212 Va. 
654, 655 (1972) (holding that the cities of Norfolk and 
Portsmouth, which are separated by the Elizabeth River, are 
contiguous); 1984-1985 Op. Atty Gen. Va. 128 (Oct. 4, 
1984) (determining that "land areas which are separated only 
by a body of water, with no territory of like kind between 
them, may be considered ‘contiguous’" for purposes of 
election laws regarding voter registration). In the past, 
Virginia had drawn congressional districts contiguous only 
over water. See Tr. at 339-40. Since all of Virginia’s 
eleven congressional districts satisfy the state’s decades-old 
definition of contiguity, any finding that contiguity was 
subordinated to race would be clearly erroneous.



21

The only mandatory criteria that could even conceivably 
have been compromised by the creation of the Third Con­
gressional District is compactness. And here, too, the 
district court’s analysis was remarkable for its glaring 
disregard of Virginia’s traditional definition of compactness. 
In Jamerson, the Supreme Court of Virginia made pellucidly 
clear that compactnessness is not synonymous with preserva­
tive of communities of interest or use of subdivision bound­
aries:

[T]he use of the words "contiguous and compact," 
as joint modifiers of the word "territory" in Article 
II, § 6,9 clearly limits their meaning as definitions 
of spatial restrictions in the composition of electoral 
districts. Indeed, when we were dealing with the 
reapportionment policies of minimizing the splitting 
of counties and cities and of recognizing existing 
communities of interest in Brown v. Saunders, [159 
Va. 28 (1932),] we did not mention them as a part 
of this constitutional requirement, as the complain­
ants contend. Instead, we simply referred to these 
policies as a "custom" and as a consideration in 
reapportionment of electoral districts.

244 Va. at 514 (internal citation omitted). But much of the 
district court’s compactness analysis in this case focused on 
the question of how many jurisdictions were split — precisely 
the question that the Supreme Court of Virginia had held was 
irrelevant to the compactness criterion. This Court has

9 Art. II, § 6 of the Virginia constitution provides, in pertinent 
part, that "[e]very electoral district shall be composed of contiguous 
and compact territory and shall be so constituted as to give, as nearly 
as is practicable, representation in proportion to the population of the 
district," and is the state constitutional foundation on which the "equal 
representation" criterion is based.



22

squarely stated that compactness is not an independent 
question of federal law, see Shaw I, 509 U.S. at 647, and 
thus the district court had no justification for ignoring 
Virginia’s 60 year-old practice of considering compactness 
without regard to political subdivisions.

Considered in this way, the Third District is compact. 
First, it is more compact both than other districts drawn in 
the 1991 plan and than districts in previous apportionments. 
Second, the Third Congressional District is entirely compara­
ble to the shapes of the Fifteenth and Eighteenth State 
Senatorial Districts, both of which the Supreme Court of 
Virginia found to be sufficiently compact as a matter of state 
law. See Jamerson, 244 Va. at 515, 518 (maps). It is 
clearly erroneous to say that the Third District represents a 
significant sacrifice of compactness.

But even if some compactness were sacrificed in the 
redistricting process, the district court was simply wrong to 
conclude that compactness was sacrificed for racial reasons. 
First, the relationship between minority representation and 
compactness was not a one-way street. Unlike the other 
plans that have come before this Court, Virginia sacrificed 
some degree of minority representation to compactness; after 
all, the General Assembly declined to draw a second majori­
ty-black district or a black "influence" district. It makes no 
sense to say that racial considerations predominated when 
they in fact gave way to a substantial degree. Second, there 
was a prominent alternative plan — introduced by Senate 
Majority Leader Hunter Andrews — that drew a majority- 
black district that had smoother boundaries. See Moon J.S. 
App. at 80. Thus, even if some compactness was somewhat 
subordinated to something, the district court erred in thinking 
it had been subordinated to race, when the testimony at trial 
shows that partisanship and incumbent protection underlay 
the General Assembly’s decision. See Tr. at 349-51.



23

The district court’s treatment of the state’s policy 
"considerations" is equally flawed. A few examples will 
suffice. The decision to split Richmond between a Demo­
cratic and a Republican district, or to split Newport News to 
preserve Republican incumbent Herb Bateman’s seat while 
nonetheless providing for a new, predominantly Democratic 
district from which Bobby Scott could run reflects "tradition­
al districting principles," even if it does not comport with 
some platonic, judge-derived theory of how districting should 
be done. Moreover, it is utterly inconceivable that Virginia 
would have drawn a majority-black district if it had been 
forced to sacrifice Tidewater area incumbents or the Demo­
crats’ aspiration of picking up a new seat in Northern 
Virginia. Indeed, the General Assembly decisively rejected 
plans that would have produced that result.

Similarly, the district court’s observation that the Third 
District lacks a "common interest," Moon J.S. App. at 18, 
because it encompasses multiple cities and stretches over 
"200 road miles of territory," is belied by the fact that even 
the plaintiffs’ witness testified that people in the Hampton 
Roads area travel among jurisdictions daily, Tr. at 216; that 
seven of Virginia’s other ten districts are larger in area, 
Defendants’ Exhibit 1, at 5; and that the Virginia Supreme 
Court concluded in 1992 that two state senatorial districts that 
each joined parts of the Third Congressional District with 
areas 145 and 165 miles away and each split cities and 
counties nonetheless adequately considered preservation of 
communities of interest. See Jamerson, 244 Va. at 509, 515- 
16. The self-contradictory nature of the district court’s view 
of communities of interest is captured in the final sentence of 
its discussion: "This conclusion is reinforced by the fact that 
approximately two-thirds of the population are black Ameri­
cans and approximately one-third are white or other Ameri­
cans." Moon J.S. App. at 18. What can this sentence 
possibly mean, other to suggest that the district court thinks



24

that only monoracial districts or majority-white districts can 
"harbor a common interest," id. — both sentiments utterly 
repugnant to the Constitution?

Of course, Virginia traded off some compactness and 
some preservation of political subdivision lines and precinct 
boundaries in drawing its 1991 statewide plan. But it also 
sacrificed some maximization of black voting strength, some 
political fairness, and one incumbent. Every criterion and 
policy consideration except equipopulosity gave way some­
what. It is simply impossible to distill from this complex, 
deeply political process a conclusion that race was the 
predominant factor driving the redistricting engine. And it 
is far more plausible to conclude that when compactness and 
political subdivision lines were sacrificed, they yielded, as 
they had repeatedly done in the past, to the Commonwealth’s 
nonracial political and economic interests. In short, the 
district court erred in assuming that "[r]ace was the criterion 
that, in the State’s view, could not be compromised," Shaw 
II, 116 S.Ct. at 1901; race was simply one factor among 
many and it was in fact compromised.

II. The Third District satisfies even strict scrutiny
because it is an appropriate response to Virginia’s
obligations under section 2 of the Voting Rights Act

The district court’s holding that the Third District could 
not survive strict scrutiny was premised on its belief that the 
Commonwealth had no basis for fearing liability under 
section 2 of the Voting Rights A ct.10 This conclusion, in

10 The district court’s offhanded observation that the Justice 
Department’s entirely appropriate disavowal of any "maximization" 
policy meant it also would not bring a section 2 lawsuit if the state 
clearly diluted black voting strength, Moon J.S. App. at 20-21, 
illustrates the district court’s misunderstanding of voting rights law.



25

turn, rested on the court’s extraordinary and unsupportable 
conclusion that section 2 plaintiffs would be unable to satisfy 
the third prong of the test set out by this Court in Thornburg 
v. Gingles, which asks whether "the white majority votes 
sufficiently as a bloc to enable it — in the absence of special 
circumstances ... -  usually to defeat the minority’s preferred 
candidate." 478 U.S. at 51. (The district court essentially 
assumed for the sake of argument that section 2 plaintiffs 
would be able to meet the remaining requirements for 
establishing liability. See Moon J.S. App. at 21-22.) In 
addition, the district court thought that the Third District was 
not narrowly tailored because it did not overlap with mathe­
matical precision the precise areas where voting rights 
violations had occurred. As to the question of white bloc 
voting, the district court’s factual findings were both clearly 
erroneous and tainted by a misunderstanding of the relevant 
legal standard. As to the question of the precise placement 
of the Third District, the district court simply misunderstood 
this Court’s directives in Shaw II  and Vera.

A. Virginia had a strong basis in evidence for 
believing there was legally significant 
white bloc voting within the area where 
it located the Third District

This Court’s decisions make clear that a state may have 
a "strong basis in evidence" for taking race-conscious action 
without first being held liable under section 2. See Shaw II,

Both the text of section 5 and the Department’s standard policy 
expressly leave open the possibility that the Department will sue under 
section 2 to enjoin a practice it precleared under section 5, and the 
Department has done precisely that several times in the past. 
Moreover, this Court’s recent decision in Reno v. Bossier Parish, 65 
U.S.L.W . 4308 (May 12, 1997), suggests that would have been the 
correct course for the Department to take.



26

116 S.Ct. at 1905 (assuming, for the sake of argument that 
North Carolina had a strong basis in evidence, although there 
had been no judicial finding); Vera, 116 S.Ct. at 1970 
(O’Connor, J., concurring) (explaining why Texas had a 
strong basis in evidence for race-conscious districting in the 
Dallas area). In her concurrence in Vera, Justice O ’Connor 
pointed to these factors in explaining why Texas had a strong 
basis for concluding "that the creation of a majority-minority 
district was appropriate": prior judicial findings of racial vote 
dilution within the relevant region; testimony regarding racial 
bloc voting; and examples of reasonably compact, plurality- 
black districts. Id. Virginia satisfies this test.

The district court’s conclusion to the contrary regarding 
the presence of bloc voting was the linchpin of its analysis. 
That conclusion rests on four glaring mistakes. First, the 
district court completely ignored undisputed evidence 
showing that the vast majority of white voters had refused, 
in election after election, to vote for any black candidates. 
Both plaintiffs’ and defendants’ experts agreed that on 
average less than fifteen percent of the white electorate 
within the area in which the Third District was located were 
willing to vote for black candidates.

Second, the district court mistakenly relied on black 
electoral success within majority black districts to find an 
absence of white bloc voting. For example, the court 
emphasized that 9 of the 91 members of the Virginia House 
of Delegates were black. Moon J.S. App. at 22 n.7. But 
every one of those delegates was elected from a majority- 
black constituency. In fact, each of them was elected from 
a constituency that was at least 57 % black (and several other 
majority-black districts elected white delegates). Success 
within such majority-black districts quite simply provides no 
evidence for concluding blacks can win in majority-white 
districts. See Gingles v. Edmisten, 590 F. Supp. 345, 365-67



27

(E.D.N.C. 1984) (three-judge court) (explaining that black 
electoral success from majority-black election districts did not 
undermine the conclusion that black candidates would lose in 
majority-white jurisdictions), a ff’d, 478 U.S. 30 (1986).

Third, the district court seemed to think that black 
electoral success in other parts of the state was somehow 
relevant to whether black voters within the Third District 
could elect the candidates of their choice. Judge Widener, 
for example, repeatedly pressed the defendant’s expert on 
racial bloc voting to explain why she had not taken into 
account the electoral success of a black mayoral candidate in 
Roanoke — a city on the other side of the Blue Ridge 
Mountains and at least a three-hour drive from any part of 
the Third District. See Tr. at 438. Black electoral success 
for local office hundreds of miles away is legally irrelevant 
to the question whether black voters in the Tidewater and 
Richmond areas can elect the congressional candidates of 
their choice. Cf. Shaw II, 116 S.Ct. at 1906 (pointing out 
that "[t]he vote dilution injuries suffered by ... persons [in 
one part of a state] are not remedied by creating a safe 
majority-black district somewhere else"). To the contrary, 
there is a strong basis in evidence -  consisting of judicial 
findings in Richmond, Norfolk, and Henrico County and 
consent judgments in Hopewell and Newport News — for 
concluding the opposite: that bloc voting has prevented 
blacks from electing their preferred candidates in local 
elections.

Fourth, the district court exaggerated the significance of 
Douglas Wilder’s statewide success and Bobby Scott’s 
success at the state legislative level. These two men are in 
fact the only blacks in this century to have won major state 
or federal office from a majority-white constituency in 
Virginia. The court failed entirely to take into account the 
unusual circumstances that had allowed them to win, or the



28

undisputed fact that, in the area where the Third District is 
located, neither man in fact could have won election to office 
from a majority-white constituency. For example, roughly 
three-quarters of white voters within the Third District 
supported W ilder’s opponents in his races for governor and 
lieutenant governor. See Def. Exh. 1. And even this low 
level of support paints an atypically rosy picture: Wilder 
received an unprecedented share of the white votes cast. 
Finally, the court gave no weight at all to the most probative 
piece of evidence in this regard -- the fact that Bobby Scott 
himself had been unable to win election to Congress from a 
majority-white district in the same general area as the Third 
District, receiving only 8% of the white votes, far fewer than 
white Democratic nominees received in the succeeding two 
elections.

B. The Third District satisfies this Court’s 
requirement that a remedial district be 
located where the potential section 2 
violation is found

In Shaw II, this Court explained that narrow tailoring 
requires that a remedial district be drawn "coincident" with 
the potential section 2 violation whose remediation serves as 
the compelling state interest. 116 S.Ct. at 1906.

The district court committed serious legal and factual 
error in applying this standard. It concluded that the Third 
District "does not directly address the harm asserted,” 
because some localities in which blacks experienced vote 
dilution were not included within the district. Moon J.S. 
App. at 21. That conclusion directly contradicts this Court’s 
clear statement in Shaw II that the remedial siting require­
ment "does not mean that a § 2 plaintiff has the right to be 
placed in a majority-minority district once a violation of the 
statute is shown. States retain broad discretion in drawing



29

districts to comply with the mandate of § 2." 116 S.Ct. at 
1906 n.7. Moreover, the Court has also made clear that 
states must have "leeway" about where exactly to place a 
remedial district; they need not draw "the precise compact 
district that a court would impose in a successful § 2 chal­
lenge," but need only respect "their own traditional dis­
tricting principles." Vera, 116 S.Ct. at 1960 (opinion of 
O ’Connor, J.) (emphasis added). Thus, the fact that some 
black voters with potential section 2 claims are not included 
in the Third District does not undermine the state’s narrow 
tailoring.11

If one were to place a map of the places where credible 
claims of vote dilution had been brought on top of a map of 
the Third District, the overlap would be quite substantial. 
Most of the land bridge tying these areas together consists of 
intact counties such as Surry, Charles City, and New Kent. 
The district court took exactly the wrong message from the 
fact that only portions of five jurisdictions that had faced 
meritorious section 2 lawsuits were included within the Third 
District. Moon J.S. App. at 21. The parts of Newport 
News, Henrico, Hopewell, Richmond, and Norfolk that were 
included in the Third District were the places where the 
victims of proven or recognized vote dilution lived. The 
decision to split those jurisdictions was an integral part of 
narrow tailoring, in precisely the same way that splitting 
those jurisdictions into single-member districts for local 
elections was narrow tailoring: such division was necessary 
to remedy dilution through submergence.

11 To the contrary, the commonwealth’s refusal to stuff every 
conceivable section 2 plaintiff into the Third District actually supports 
the conclusion that the district is narrowly tailored, both because it 
avoids unnecessary "packing" of black voters and because it allowed 
the district to have more regular boundaries.



30

Put simply, Virginia had good reason to believe that 
black voters in the Richmond and Tidewater areas could win 
a section 2 challenge to the failure to draw a single majority- 
black congressional district and it therefore drew such a 
district while fulling respecting its "own traditional districting 
principles," Vera, 116 S.Ct. at 1961 (emphasis added).

Conclusion

For the reasons stated above, the Court should note 
probable jurisdiction of this appeal.

Respectfully submitted,



J. Gerald Hebert 
Counsel o f  Record 

800 Parkway Terrace 
Alexandria, VA 22302 
(703) 684-3585/3586 (fax)

Elaine R. Jones 
Director-Counsel 
Theodore M. Shaw 
Norman J. Chachkin 
Jacqueline A. Berrien 
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, NY 10013 
(212) 219-1900

Pamela S. Karlan 
580 Massie Road 
Charlottesville, VA 22903 
(804) 924-7810/7536 (Fax)

M. Laughlin McDonald 
Neil Bradley 
Maha S. Zaki 
American Civil Liberties 
Union Foundation, Inc.
44 Forsyth Street, N.W. 
Suite 202
Atlanta, GA 30303 
(404) 523-2721

Attorneys fo r  Appellants



A p p e n d ix



Page A-l

Notice of Appeal, Dated March 7, 1997

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

RICHMOND DIVISION

DONALD MOON and ROBERT SMITH, )
)

Plaintiffs, )
)

v. ) Civil No.
) 3:95CV942

M. BRUCE MEADOWS, )
)

Defendant, )
)

and )
)

CURTIS W. HARRIS; JAYNE W. )
BARNARD; JEAN PATTERSON BOONE; ) 
RAYMOND H. BOONE; WILLIE J. DELL; ) 
HENRY C. GARRARD, SR.; WALTER T. ) 
KENNEY, SR.; and GERALD T. ZERKIN, )

)
Defendant-Intervenors. )

___________  )

NOTICE OF APPEAL

NOTICE is hereby given that defendant-intervenors 
Curtis W. Harris, Jayne W. Barnard, Jean Patterson Boone, 
Raymond H. Boone, Willie J. Dell, Henry C. Garrard, Sr., 
Walter T. Kenney, Sr., Melvin R. Simpson, and Gerald T. 
Zerkin, hereby appeal to the Supreme Court of the United 
States pursuant to 28 U.S.C. 1253 from the judgment and



Page A-2

order filed February 7, 1997, declaring the Third Congres­
sional District in Virginia to be violative of the United States 
Constitution and enjoining state officials in Virginia from
conducting any future elections

ELAINE R. JONES 
Director-Counsel 
THEODORE M. SHAW 
NORMAN J. CHACHKIN 
JACQUELINE A.
BERRIEN
NAACP Legal Defense and 
Educationa; Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 
10013
(212) 219-1900

PENDA HAIR
NAACP Legal Defense and
Educational Fund, Inc.
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 683-1300

[Certificate of

m that Congressional District.

Respectfully submitted,

__ _______ /s/
J. GERALD HEBERT 
Attorney at Law 
Virginia Bar No. 38432 
800 Parkway Terrace 
Alexandria, VA 22302

M. LAUGHLIN 
McDo n a l d  
NEIL BRADLEY 
MAHA S. ZAKI 
American Civil Liberties 
Union Foundation, Inc.
44 Forsyth Street, N.W. 
Suite 202
Atlanta, GA 30303 
(404) 523-2721

PAMELA S. KARLAN 
580 Massie Road 
Charlottesville, VA 22093 
(804) 924-7810

Service Omitted]