Moon v. Meadows Defendant-Intervenors' Proposed Findings of Fact and Conclusions of Law

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

RICHMOND DIVISION

DONALD MOON and ROBERT SMITH, )
)

Plaintiffs, )
)

M. BRUCE MEADOWS, ‘ )
)

Defendant, )
)

and )
)

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

)
Defendant-Intervenors. )

Civil No. 3:95CV942

DEFENDANT-INTERVENORS’ PROPOSED FINDINGS OF FACT 
AND CONCLUSIONS OF LAW

Findings of Fact

Defendant-Intervenors adopt and endorse the proposed Findings of Fact submitted 

by the Defendant, which we do not duplicate; however, we submit the following additional 

findings:

1. Every plan considered on the floor of the General Assembly, including those 

submitted by members of the majority and minority political parties, included at least one

district out of eleven in which a majority of the population was black. See Jt. E x .__[1991

Section 5 Submission, Attachment 15, Legislative History of 1991 Virginia Congressional 

Redistricting & Table List of Congressional District Plans].



2. The majority black districts included in these plans assumed different shapes and 

sizes, depending on the other criteria emphasized by their authors. Id.

3. Reacting to the configuration of the Third District in the working plan, Senator

Scott noting that other configurations could satisfy the Voting Rights Act stated "the 

ACLU, the NAACP and others have shown configurations that are much more compact." 

Jt. E x .__[November 13, 1991 Public Hearing, p. 104],

4. At the time of reapportionment in 1991, African-Americans held 3 state Senate 

and 7 state House of Delegates seats in the Virginia legislature; all were from the urban 

areas of Hampton, Newport News, Norfolk, Portsmouth and Richmond. DI-X-9 [Joint 

Center for Political and Economic Studies, Black Elected Officials (1990), p. 435].

5. The Third Congressional District is the most racially mixed district in terms of the 

percentages of white and black population of any of Virginia’s eleven congressional 

districts. DI-X-7, Attachment 11 [District Population Analysis for Plan C0830452].

6. All ten of the current majority white congressional districts contain a higher 

percentage of white population than the percentage of black population in the Third. Id.

7. Of the current eleven members of Virginia’s congressional delegation, there are 

ten white representatives and one African-American Representative. DI-X-7 [Request and 

Response to Plaintiffs’ Third Request for Admission, No. 7],

8. The current representative elected from the Third Congressional District is the

first African-American member of Virginia’s congressional delegation since John Mercer 

Langston was elected in 1888. DI-X-7, 8 [Request and Response to Plaintiffs’ Third

Requests for Admission, No. 6],

2



9. In the early 1980s, the United States Commission on Civil Rights noted that only 

4 of the 100 members of the House of Delegates were black and that "the drawing of 

legislative boundaries and the extensive use of multimember districts has limited black 

opportunities for elected office." U.S. Commission on Civil Rights, The Voting Rights Act: 

Unfulfilled Goals (Washington, September, 1981), p. 56.

10. The Commission reported a total of 124 black elected officials in Virginia 

(federal, county and municipal offices), the lowest number of such officials in any state 

covered by Section 5. Id. at p. 12, Table 2.1.

11. While blacks were nearly 19% of the state’s population, only 4.1% of the state’s 

elected officials were black. Id. at p. 19, Table 2.10.

12. In 1991, the situation was not much improved, with only 151 black elected 

officials in Virginia, below the national average and among the lowest number in covered 

jurisdictions. DI-X-10 [Virginia Statistical Abstract, pp. 278, 285],

13. In 1992, 198 of 2961 of the elected officials in Virginia, or 6.7%, were black. Id , 

Table 9.12A, p. 295.

14. Of the current 100 members of the House of Delegates, 91 are white and nine 

are African-American. The African-American delegates and their districts are as follows: 

D. C. Jones - 70; Cunningham - 71; McEachin - 74; Spruill - 77; Melvin - 80; J. C. Jones - 

89; Robinson - 90; Christian - 92; Crittenden - 95. DI-X-7, Attachment 8 [Virginia State 

Legislative Guide, pp. 6-9],

3



15. All nine African-American delegates are elected from districts with 57% or more 

black total population, kb DI-X-7, Attachment 9 [District Population Analysis for Plan 

H0881750],

16. Seven of the nine majority-black House of Delegates districts created after 1980 

were at least 59 per cent black; as of 1990, those seven seats were held by black Democrats

and the other two were held by white Democrats. Jt. Ex. __ [Morris, Redistricting &

Reapportionment, p. 193].

17. At the time of his election to the state Senate, Rep. Scott was one of four

African-American members of the House of Delegates. Scott’s election and re-election in 

1983 and 1987 constitute the only times a black has been elected from a majority-white 

single-member district for the state Senate. Jt. Ex. _[Morris, in Quiet Revolution at 282].

18. The 1971 election of William Ferguson Reid and the 1982 and 1983 election and 

reelection of Rep. Scott to the House of Delegates were the only instances in which a black 

has been elected from a majority-white single-member district for the House of Delegates. 

Id,

19. Currently, there are three white delegates elected from districts with 55% or 

more black total population. The delegates and their districts are as follows; DeBoer - 63; 

Hall - 69; Councill - 75. DI-X-7, Attachment 8 [Virginia State Legislative Guide, pp. 6-9]; 

DI-X-7, Attachment 9 [District Population Analysis for Plan H0881750].

20. There are currently no African-American delegates elected from majority white 

districts. Id.

4



21. Similarly, of the current 40 members of the Senate, 35 are white and five are 

African-American. The African-American senators and their districts are as follows: 

Maxwell - 2; Y. B. Miller - 5; Lambert - 9; Marsh - 16; Lucas - 18. DI-X-7, Attachment 

8 [Virginia State Legislative Guide, pp. 2-3].

22. All five African-American senators are elected from districts with 56% or more 

black total population. Ick

23. Douglas Wilder’s election as Lieutenant Governor and Governor with significant 

white voter support in statewide contests are exceptions to the prevailing pattern of white 

racial bloc voting which prevents the election of African-American candidates except in 

majority-black districts. R. Boone Test.; DI-X-15 [Kenney Deck], -17 [J. Boone Deck], -18 

[Zerkin Deck], -19 [Garrard Deck].

24. Governor Wilder actually carried a minority of Virginia’s cities (22 of 41) and 

counties (22 of 95) in his successful 1989 bid for the Governship; although he received 

approximately 41% of the white vote, his margin of victory was largely provided by votes

from Northern Virginia and the Hampton Roads area. Jt. Ex. __ [Morris, in Quiet

Revolution at 278],

25. Plaintiff Robert Smith provided testimony regarding the continuing impact of 

race discrimination on the electoral aspirations of blacks, indicating that in 1989, the white 

chair of the Norfolk Republican Party "refused to let me apply to be nominated" as a 

Republican candidate for local office. DI-X-14 [Smith Deposition, p. 96]. When asked the 

basis of that refusal, Mr. Smith forthrightly responded "Racism." Id,

5



26. Federal courts have made findings of racial bloc voting in the following Virginia

jurisdictions, including some within the boundaries of the Third District: (1) City of

Petersburg - City of Petersburg v. United States, 354 F. Supp. 1021 (D.D.C. 1972), afFd 410 

U.S. 962 (1973); (2) City of Norfolk - Collins v. City of Norfolk, Virginia, 883 F.2d 1232 

(4th Cir. 1989), cert, denied 498 U.S. 938 (1990); (3) Henrico County - McDaniels v. 

Mehfoud, 702 F. Supp. 588, 594 (E.D.Va. 1988); and (4) Nottoway County - Neal v. 

Coleburn, supra, 689 F. Supp. 1426, 1430, 1431 (E.D.Va. 1988). The district court found 

polarized voting in Brunswick County - Smith v. Board of Supervisors of Brunswick County. 

801 F. Supp. 1515 (E.D. Va. 1992), rev’d on other grounds, 984 F.2d 1393 (4th Cir. 1993).

27. In addition, the City of Newport News stipulated that plaintiffs could establish 

a prima facie showing of white bloc voting. DI-X-7, Attachment 1 [Pegram and United 

States of America v. City of Newport News, Virginia, Civil Action Nos. 4:9400079 and 

4:94CV155 (E.D.Va. November 4, 1994), slip op. at 4].

28. Reverend Curtis W. Harris, Sr., one of the defendant-intervenors in this action, 

is an African-American resident of Hopewell, Virginia, within the Third Congressional 

District. DI-X-16 [Harris Deck].

29. During the twenty years prior to 1984, Rev. Harris sought election to the City 

Council of Hopewell seven times; over the course of this period of time, African-American 

citizens made up between 25 per cent and 30 per cent of the city’s total population. 

Although Rev. Harris received strong support among African-American voters, he was 

defeated each time he ran because he could not attract a sufficient number of white votes 

in the at-large elections. IcL

6



35. In 1968 and 1970 Kenney was an unsuccessful candidate for an at-large seat on 

the City Council of Richmond. In each of these elections he received less than 7 per cent 

of the ballots cast by white voters. Id.

36. In 1970, African-Americans challenged the at-large system for electing city 

council members in Holt v. City of Richmond. No elections were held from 1970 to 1977 

because of the pendency of the suit; in 1977 the case was settled with the adoption of a 

plan for choosing members of the City Council from districts or wards. Five of the wards 

created under this plan included African-American population majorities. Kenney was a 

successful candidate for the council in the 1977 elections, running in one of the majority- 

black districts. Id

37. Kenney’s opinion is that African-American candidates can be elected in Virginia, 

in the Third Congressional District, and in the City of Richmond, only from majority- 

minority districts. Id

38. In McDaniels v. Mehfoud, 702 F. Supp. 588, 593-94 (E.D. Va. 1988), a case 

challenging the lines drawn for electing members of the Henrico County Board of 

Supervisors, the court found that voting in the county was racially polarized in the 1980’s. 

(Part of Henrico County is in the Third Congressional District challenged in this litigation.) 

In fact, the African-American plaintiffs’ expert witness in the case found that in one 

magisterial district there was almost a 100% correlation between race and voting patterns 

among black voters and a high, although not as great, correlation among white voters. The 

witness also observed from his analysis that support for Governor Douglas Wilder among 

white Democratic voters in the county was substantially lower than the level of support that

8



non-black Democratic candidates normally received in the same precincts. Dl-X-18 [Zerkin 

Deck],

39. Rev. Henry C. Garrard, one of the defendant-intervenors in this action, is an 

African-American resident of Richmond, Virgniia, within the Third Congressional District. 

For many years Rev. Garrard served as a minister in parishes in King and Queen County.
V

DI-X-19 [Garrard Deck].

40. Although the population of King and Queen County was 55 per cent African 

American, no black person was ever elected to the Board of Supervisors until, as a result 

of a federal court case, Alsop v. King and Queen County Board of Supervisors, two 

majority-minority districts were created. In the first election under this plan, two black 

candidates were elected from these districts. Id,

41. Norvel James Dickenson is an African-American resident of the City of 

Hampton, in the Third Congressional District. DI-X-21 [Dickenson Deck].

42. Dickenson was a plaintiff in a lawsuit, Simpson v. City of Hampton, challenging 

the system of at-large elections for members of the Hampton City Council. The case has 

recently been settled. Although Hampton is approximately 40 per cent black, Dickenson 

recalls many occasions on which black candidates for the Council received most of the 

black vote but were defeated by white voters. Although two African-American candidates 

were elected at-large in the May, 1996 elections (prior to settlement of the suit), Dickenson 

attributes this victory to a large field of white candidates that split the white vote. Id,

43. Statistical analysis (ecological regression and homogeneous precinct analysis) of 

election contests involving white and African-American candidates for municipal, county

9



and state legislative offices from 1985 through 1991 in the sixteen counties and independent 

cities that include geographic portions of the Third Congressional District indicates that 

African-American voters were politically cohesive and that voting was highly polarized 

along racial lines between white and African-American voters. Ecological regression 

indicates that among 35 head-to-head contests between African-American and white 

candidates analyzed, the average African-American cohesion level was 78% and the average 

level of white crossover voting for black candidates was 13%. In ten multi-member contests 

for which information indicating the number of ballots cast was available, the average level 

of African-American cohesion was 76% and the average level of white crossover vote was 

13%. Homogeneous precinct analysis for these contests confirmed these estimates. Cole 

test.

44. Litigation under the Voting Rights Act to challenge multi-member districts and 

other voting configurations that limited African-American’s opportunity to elect candidates 

of their choice in Virginia in light of racially polarized voting patterns did not begin until 

the 1980’s but there was widespread media coverage of this litigation, so that the members 

of the legislature which enacted the districting plan including the challenged Third 

Congressional District were undoubtedly aware of the successful results obtained by

plaintiffs in this litigation in the Commonwealth. Jt. E x .__[Morris, in Quiet Revolution,

pp. 286-87]; DI-X-12 [newspaper articles],

45. The Commonwealth and its political subdivisions have a long history of official 

discrimination on the basis of race against African Americans, including discrimination

10



which directly touched on the right to vote. Jt. Ex. __[Morris, in Quiet Revolution, pp.

271-75],

46. Prior to 1966, Virginia maintained a poll tax which federal courts found was 

expressly intended to disfranchise black voters. See Harper v. Virginia State Board of 

Elections, 383 U.S. 663 (1966); Harman v. Forssenius. 380 U.S. 528, 543 (1965).

47. Until 1974, Virginia imposed a literacy test upon persons wishing to register to 

vote. See Commonwealth of Virginia v. United States. 386 F. Supp. 1319, 1320 (D.D.C. 

1974) (three-judge court), affd, 420 U.S. 901 (1975).

48. Until 1964, the Virginia Constitution and laws required maintenance of public 

records on a racially segregated basis for voter registration, poll tax, residence-certificate, 

and property ownership and tax lists. Griffin v. Board of Supervisors of Prince Edward 

County, 339 F.2d 486 (4th Cir. 1964); Hamm v. Virginia State Board, 230 F. Supp. 156 

(E.D.Va. 1964) (three-judge court), afPd sub nom. Tancil v. Woolls, 379 U.S. 19 (1964).

49. Given its discriminatory history, Virginia was denied an exemption from Section 

5 of the Voting Rights Act. Commonwealth of Virginia v. United States, 386 F. Supp. 1319 

(D.D.C. 1974) (three-judge court), M£d 420 U.S. 901 (1975).

50. Suffrage restrictions in Virginia minimized voting by blacks and poor whites.

Between the 1870’s and 1960’s suffrage restrictions in Virginia effectively limited black 

voting strength to a level that did not threaten the power of white supremacists and 

virtually eliminated the ability of African-American candidates to run successfully for public 

office. Jt. E x .__[Morris, in Quiet Revolution at 271, 275],

11



51. In 1901-02, the Virginia constitutional convention adopted provisions for an 

"understanding clause" and literacy tests designed explicitly for the purpose of disfranchising 

black voters. Id  at 273.

52. Of the estimated 147,000 blacks of voting age in Virginia at the time the 1902 

Constitution was adopted, only 21,000 were on the registration lists once Virginia’s 

registrars began applying the "understanding clause." Id

53. After the poll tax was reinstated in 1905, it was estimated that fewer tha one-half 

of the 21,000 black voters met both poll tax and registration requirements. In Richmond, 

the number of blacks qualified to vote shrank from 6,427 in 1900 to 228 in 1907. Id.

54. Virginia adopted an appointive method for school boards in the Constitutional 

Convention of 1901-02 for the purpose of minimizing or precluding black participation on 

school boards. In 1956 when the Arlington School Board, the only elected school board 

in the state, voted to adopt a modest school integration program, the legislature altered the 

method of selection for that board to make it appointive, for what the Court of Appeals 

found to be discriminatory reasons. Irby v. Fitz-Hugh, 889 F.2d 1352 (4th Cir. 1989), cert, 

denied. 496 U.S. 906 (1990).

55. Passage of the Voting Rights Act of 1965 suspended Virginia’s literacy test for 

voting. The adoption of the Twenty-fourth Amendment to the United States Constitution 

in 1964 eliminated the poll tax for federal elections, and the Supreme Court’s decision in 

Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) invalidated the poll tax 

for state elections. To replace the poll tax the Virginia legislature enacted a provision that 

would require voters to file a "certificate of residence" six months prior to each federal

12



election to prove continuing residence in the state. In May, 1964 a federal district court 

invalidated the measure. Jt. E x .__[Morris, in Quiet Revolution at 276],

56. In 1973 Virginia became the first southern state to seek exemption from the 

Section 5 pre-clearance provisions of the Voting Rights Act. Virginia was denied the 

exemption by the United States District Court for the District of Columbia on the ground 

that the state’s record of segregated, inferior education for blacks contributed to low 

literacy rates, which affected the ability of persons to satisfy literacy requirements prior to 

1965. Commonwealth of Virginia v. United States, 386 F. Supp. 1319 (D.D.C. 1974) 

(three-judge court), affd, 420 U.S. 901 (1975).

57. Federal courts have found a history of official discrimination on the basis of race 

in the following Virginia jurisdictions in cases brought under Section 2 of the Voting Rights 

Act: (1) Nottoway County - Neal v. Coleburn, 689 F. Supp. 1426, 1428 (E.D.Va. 1988); (2) 

Richmond County - Henderson v. Board of Supervisors of Richmond County, Virginia. 

1988 U.S. Dist. LEXIS 16729, *4 (E.D.Va. June 6, 1988); (3) City of Petersburg - City of 

Petersburg v. United States. 354 F. Supp. 1021, 1025 (D.D.C. 1972), affd 410 U.S. 962 

(1973); (4) Henrico County - McDaniels v. Mehfoud. 702 F. Supp. 588, 594 (E.D.Va. 1988).

58. In Pegram and United States of America v. City of Newport News. Virginia, Civil 

Action Nos. 4:9400079 and 4:94CV155 (E.D.Va. November 4, 1994), Newport News 

stipulated that plaintiffs could make a prima facie showing of history of official race 

discrimination in voting and other areas. DI-X-7, Attachment 1 [Slip op. at pp. 4-5],

59. Federal courts have found violations of Section 2 in the following Virginia 

jurisdictions, including some within the boundaries of the Third District: (1) City of

13



Newport News - Pegram and United States of America v. City of Newport News, Virginia. 

Civil Action Nos. 4:9400079 and 4:94CV155 (E.D.Va. Nov. 4, 1994), DI-X-7, Attachment 

1; (2) Lancaster County - Taylor v. Forrester, Civil Action No. 89-00777-R (E.D.Va. May 

17, 1990), DI-X-7, Attachment 13; (3) City of Norfolk - Collins v. City of Norfolk. Va.. 883 

F.2d 1232, 1243 (4th Cir. 1989), cert, denied 498 U.S. 938 (1990); (4) Nottoway County -
V

Neal v. Coleburn. supra. 689 F. Supp. at 596; (5) Richmond County - Henderson v. Board 

of Supervisors of Richmond County. Virginia, 1988 U.S. Dist. LEXIS 16729, *4 (E.D.Va. 

June 6, 1988); (6) Henrico County - McDaniels v. Mehfoud, 702 F. Supp. 588, 589 

(E.D.Va. 1988).

60. Consent decrees resolving Section 2 challenges have been entered in numerous 

Virginia jurisdictions including the following, some within the boundaries of the Third 

District: (1) City of Hopewell - Harris v. City of Hopewell, Virginia, Civil Action No. 82- 

0036-R (E.D. Va. January 5, 1983), DI-X-7, Attachment 2; (2) Lunenberg County - 

Watkins v. Thomas, Civil Action No. 87-0709-R (E.D. Va. May 20, 1988), DI-X-7, 

Attachment 3; (3) City of Emporia - Person v. Ligon, Civil Action No. 84-0270-R (E.D. Va. 

January 12, 1988), DI-X-7, Attachment 4; (4) Town of South Hill - Feggins v. Horne, Civil 

Action No. CA-88-0865-R (E.D. Va. June 19, 1989), DI-X-7, Attachment 5; (5) Town of 

Lawrenceville - Brunswick County League for Progress v. Town Council of Lawrenceville, 

Civil Action No. 3:91CV00091 (E.D. Va. November 5, 1991), DI-X-7, Attachment 6; (6) 

Mecklenburg County - King v. Blalock, Civil Action No. CA-88-0811-R (E.D. Va. June 6, 

1989), DI-X-7, Attachment 7; (7) Lancaster County - Taylor v. Forrester, Civil Action No. 

89-00777-R (E.D. Va. May 17, 1990), DI-X-7, Attachment 13.

14



61. The federal court found a Section 5 violation in the City of Petersburg. City of

Petersburg v. United States. 354 F. Supp. at 1028.

62. Even recent Virginia elections have continued to be characterized by racial 

appeals. DI-X-11 [newspaper articles]

63. Prior to 1954, the Virginia public schools were segregated by law on the basis 

of race. Virginia Constitution of 1902, Art. IX, §140, Code of Va. (1950).

64. "[E]ven after Brown v. Board of Education . . ., Virginia’s compliance with 

desegregation was grudging at best." Commonwealth of Virginia v. United States, supra, 

386 F. Supp. at 1323.

65. Until 1963, Virginia required racial segregation in places of public 

accommodation. See Brown v. City of Richmond, 204 Va. 471, 132 S.E.2d 495 (1963); 

Blackwell v. Harrison. 221 F. Supp. 651 (E.D.Va. 1963).

66. Interracial marriage was a felony prohibited by Virginia’s anti-miscegenation law 

until 1967. See Loving v. Virginia, 388 U.S. 1,4 (1967).

67. As of 1989, in Virginia per capita income for whites was $17,361; per capita 

income for African Americans was $9,439. DI-X-4, Attachment A.

68. As of 1989, 7.38% of white persons (342,970) had income below the poverty 

level; 22.36% of African Americans (245,972) had income below the poverty level. DI-X-4, 

Attachment B.

69. As of 1989, the majority (67.4% or 1,240,526) of white households had income 

of $25,000 or more; the majority of African American households (55.54% or 217,302) had 

income of $25,000 or less. DI-X-4, Attachment C.

15



70. Of 3,686,493 white persons 16 years and over, 88,186 (3.51%) were unemployed 

in 1989; of 821,883 African American persons 16 years and over, 47,863 (8.93%) were 

unemployed in that year. DI-X-4, Attachment E.

71. Of 3,163,904 white persons 25 years and over, a majority (51.6% or 1,632,522) 

had some college education or more in 1989; of 676,995 African American persons 25 years 

and over, a majority (67.4% or 456,293) had a high school diploma or less formal 

education. DI-X-4, Attachment F.

72. Of 1,841,346 housing units occupied by white householders, 1,296,422 (70.41%) 

were owner occupied and 544,924 (29.59%) are renter occupied in 1989; of 389,928 housing 

units occupied by African American householders, 191,749 (49.18%) were owner occupied 

and 198,179 (50.82%) were renter occupied at that time. DI-X-4, Attachment G.

73. Of 1,841,346 white occupied housing units, 112,359 (6.10%) had no vehicle 

available; of 389,928 African-American occupied housing units, 88,454 (22.68%) had no 

vehicle available. DI-X-4, Attachment H.

74. Socioeconomic data specific to the Third District indicates that its black residents 

share a common position of socio-economic disadvantage, even as compared to blacks 

statewide. They have lower per capita income, higher rates of poverty, higher rates of 

unemployment, lower percentages of high school graduates, and larger percentages of 

households without vehicles. DI-X-5.

75. In 1994, the median age at death for all Virginians was 74.7 years, the median 

age for whites was 76.1 years and for blacks was 69.9 years. DI-X-12 [Virginia Department 

of Health, Center for Health Statistics, Virginia Vital Statistics Annual Report 1994, p. 31].

16



76. Blacks are more likely to be the victims of homicide than their white 

counterparts, constituting nearly 60% (336/562) of all those who died as a result of 

homicide in 1994. Id., p. 38.

77. In 1994, the infant death rate for all Virginians was 8.2 deaths per 1,000 live 

births, the rate for whites was 6.3 deaths and the rate for African-Americans was 15.1 

deaths. Id., p. 28.

78. In 1994, the low birth weight percentage for all Virginians was 7.6%, the 

percentage for whites was 6.0% and the percentage for African Americans was 12.6%. Id.,

p. 16.

79. Plaintiff Robert Smith testified to the persistence of residential segregation in 

Virginia. Mr. Smith lives in the same house in which he lived as a child. DI-X-14 [Smith 

Deposition, p. 15]. There were no white families on his street as a child, and there are no 

white families on his street today, although there is one white resident. Id., at pp. 16-17.

80. Plaintiff Donald Moon provided similar testimony, indicating that of 30 or 40 

houses on his street, there are at most one or two black families. DI-X-13 [Moon 

Deposition, p. 13].

81. Both plaintiffs testified that they attend racially segregated churches. Id., p. 18; 

DI-X-14 [Smith Deposition, p. 17-18].

82. Plaintiffs are concerned with the partisan political character of the Third 

Congressional District -  the fact that it is a Democratic-controlled district as opposed to 

a Republican-controlled district — rather than its racial composition. DI-X-13, 14 

[depositions].

17



30. In 1982 Rev. Harris was a plaintiff in a lawsuit challenging the at-large system 

for Hopewell City Council members. The suit was settled with the adoption of a plan 

under which five members of the Council would be elected from districts and two members 

would be elected at large. One of the districts drawn under the plan, within which Rev. 

Harris resided, was 75 per cent black; Rev. Harris sought election to the Council from this
V

district and won office. Id

31. Following the 1990 Census, a new election plan for the City Council in Hopewell 

was adopted under which all seven members of the Council are relected from single­

member districts. The district within which Rev. Harris resides was redrawn and contains 

a 63 per cent black population; a second district has a 61 per cent black population. Rev. 

Harris was reelected to the Council. IdL

32. Harris subsequently was selected by the members of the City Council to serve 

as Vice-Mayor of the City of Hopewell. Id

33. Before succeeding in being elected to the Hopewell City Council, Rev. Harris 

also ran unsuccessfully for Congress in the 1984 Democratic primary in the Fourth 

Congressional District, which was predominantly white. In that contest, Harris received 

very few white votes, although he campaigned among white voters, i d

34. Walter Kenney, Sr., one of the defendant-intervenors in this action, is an 

African-American resident of Richmond, Virginia, within the Third Congressional District. 

DI-X-15 [Kenney Deck].

7



83. Partisan political considerations were a substantial factor accounting for the

configuration of the Third Congressional District, as plaintiffs admit:

I don’t know the extent to which it factored into it, but to dismiss partisan 
politics as part of the -  as having an impact I think would be naive. Both 
state houses and the governor’s office were occupied by Democrats. And if 
anyone knows anything about the inner workings of the Virginia General 
Assembly under the control of the Democrats, Republicans have been 
treated, to use a phrase like "red-headed stepchildren." And when it came 
— whether you’re talking about committee assignments or the introduction 
of legislation, they have been voiceless.

DI-X-14, pp. 84-85 [Deposition of Robert A. Smith], Plaintiff Smith noted that the 

General Assembly’s plan put then Congressman George Allen into a district with another 

incumbent, stating: "That’s the way the districts were drawn, quite simply. They drew him 

out. It’s — trust me. That is a very old and established political practice. You reward your 

friends; you punish your enemies. And they put two Republicans in the same district." Id,

at 106. See also Jt. Ex. __[§ 5 submission]; DI-X-15 [Kenney Deck], -18 [Zerkin Deck], -

24 [Byrd-Hardin Deck].

84. The areas included within the Third Congressional District share common 

interests in the resolution of a variety of issues affecting the District and all of the District’s 

constituents have received fair representation from Congressman Scott. R. Boone Test.; 

DI-X-15 [Kenney Deck], -16 [Harris Deck], -18 [Zerkin Deck], -19 [Garrard Deck], -20 

[Barnard Deck], -21 [Dickenson Deck], -22 [Williams Deck], -23 [Gear Deck], -24 [Byrd- 

Hardin Deck].

18



Conclusions of Law

1. In the line of cases from Shaw v. Reno, 509 U.S. 630 (1993) to Bush v. Vera, 116 

S. Ct. 1941 (1996), the Supreme court has developed the contours of the distinct 

constitutional claim raised by plaintiffs in this case with respect to the Third Congressional 

District: that in creating the district, the legislature placed voters within or without its 

boundaries on account of their race.

2. In order to establish that claim, plaintiffs’ burden of proof is, first, to demonstrate 

that race, "for its own sake," was the "dominant and controlling rationale in drawing [the] 

district lines," Bush v. Vera. 116 S. Ct. at 1951, quoting Miller v. Johnson, 115 S. Ct. 2575, 

2486 (1995); Shaw v. Hunt. 116 S. Ct. 1894, 1900, (1996), by proving that in the 

redistricting process, the legislature impermissibly "subordinated traditional race-neutral 

districting principles . . .  to racial considerations." Id. Plaintiffs must prove that the 

legislature took race into account "in substantial disregard of customary and traditional 

districting practices," id., quoting Miller, 115 S. Ct. at 2497 (O’Connor, J., concurring); see 

also id., 116 S. Ct. at 1969 (O’Connor, J., concurring) ("Only if traditional districting criteria 

are neglected and that neglect is predominantly due to the misuse of race does strict 

scrutiny apply") (emphasis in original).

3. The court’s inquiry on this subject "is ‘a most delicate task,’ Miller, supra, a t___

(slip op., at 3), however, because a legislature may be conscious of the voters’ races without

using race as a basis for assigning voters to districts. Shaw [v. Reno], supra, a t ____(slip

op., at 14-15); Miller, 515 U.S., a t ___(slip op., at 14)." Shaw v. Hunt, 116 S. Ct. at 1900.

19



4. If plaintiffs succeed in making the showing, the district will be considered to

embody a racial classification and this Court must apply "strict scrutiny" in determining its

constitutionality. A determination that "strict scrutiny" applies, however, is not the

equivalent of a finding that the district is unconstitutional. It is not the case

that strict scrutiny is "strict in theory, but fatal in fact." Fullilove [v. 
Klutznick, 448 U.S. 448,] 519 (Marshall, J., concurring in judgment). The 
unhappy persistence of both the practice and the lingering effects of racial 
discrimination against minority groups in this country is an unfortunate 
reality, and government is not disqualified from acting in response to it. . . .
When race-based action is necessary to further a compelling interest, such 
action is within constitutional constraints if it satisfies the "narrow tailoring" 
test this Court has set out in previous cases.

Adarand Constructors v. Pena, 115 S. Ct. 2097, 2117 (1995).

5. A majority of the Justices of the Supreme Court have indicated their view that the 

States’ interest in avoiding liability under Section 2 of the Voting Rights Act of 1965 as 

amended, 42 U.S.C. § 1973, for diluting minority voting strength in the redistricting process 

is a compelling interest for purposes of the "strict scrutiny" inquiry. See Bush v. Vera. 116 

S. Ct. at 1970 (O’Connor, J., concurring); id. at 1989 (Stevens, J., joined by Ginsburg & 

Breyer, JJ., dissenting); id. at 2007 (Souter, J., joined by Ginsburg & Breyer, JJ., 

dissenting).

6. Thus, even if plaintiffs succeed in convincing this Court that "strict scrutiny" 

applies, the challenged district is not unconstitutional if the "State has a strong basis in 

evidence for concluding that the [Thornburg v.] Gingles[, 478 U.S. 30, 50-51] factors are 

present," Bush v. Vera, 116 S. Ct. at 1970 (O’Connor, J., concurring) and the district is 

"narrowly tailored" to further the compelling interest in avoiding Section 2 liability, see id. 

Plaintiffs retain the "ultimate burden" of persuading the Court to the contrary:

20



It is incumbent upon the plaintiffs to prove their case; they continue to bear 
the ultimate burden of persuading the court that the [defendants’] evidence 
did not support an inference of [potential Section 2 liability] and thus a 
remedial purpose, or that the plan instituted on the basis of this evidence was 
not sufficiently ‘narrowly tailored.’ Only by meeting this burden [can] 
plaintiffs establish a violation of their constitutional rights . . . .

Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 293 (1986) (O’Connor, J., concurring).

7. States may deliberately create majority-black congressional districts without 

triggering strict scrutiny. See Bush v. Vera, 116 S. Ct. at 1951; id  at 1969 (O’Connor, J., 

concurring).

8. One powerful illustration of this principle appears in the Supreme Court’s 

criticisms of the operation of the Section 5 preclearance process in North Carolina and 

Georgia. In both states, the legislatures originally proposed apportionment plans that 

would have created a new majority-black district (in North Carolina, the first majority-black 

district in this century; in Georgia, a district in addition to the majority-black Fifth District 

created in the aftermath of Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982) (three-judge 

court), affd mem., 459 U.S. 1166 (1983)). In each case, the State quite expressly 

acknowledged the intentional creation of the new majority-black district in its original 

Section 5 preclearance submission to the Department of Justice. In both cases, the 

Supreme Court suggested that the original plan ought to have received preclearance 

because the plans, and the deliberate decisions to create one, but not two, new majority- 

black districts in each state, represented an acceptable exercise of the State’s "discretion" 

in districting. See Shaw v. Hunt, 116 S. Ct. at 1903-04, 1906 n.9; Miller, 115 S. Ct. at 2483- 

84, 2492.

21



9. Of similar effect is the Supreme Court’s summary affirmance, on the same day it 

decided Miller, of a district court decision rejecting a Shaw challenge to California’s 

congressional redistricting. DeWitt v. Wilson, 115 S. Ct. 2637 (1995), affirming 856 F. 

Supp. 1409 (E.D. Cal. 1994). The plans at issue in DeWitt were drawn "to maximize the 

actual and potential voting strength of all geographically compact minority groups of 

significant voting population." Wilson v. Eu, 1 Cal. 4th 707, 729, 823 P.2d 545, 559, 4 Cal. 

Rptr. 2d 379, 393 (1992). The special masters who drew the plans gave "federal Voting 

Rights Act requirements . . . the highest possible consideration." 1 Cal. 4th at 742, 823 

P.2d at 561, 4 Cal. Rptr. 2d at 399. Despite the deliberate creation of majority-minority 

districts by the masters, the three-judge court found strict scrutiny was not required because 

the masters

evidencefd] a judicious and proper balancing of the many factors appropriate 
to redistricting, one of which was the consideration of the application of the 
Voting Rights Act’s objective of assuring that minority voters are not denied 
the chance to effectively influence the political process.

856 F. Supp. at 1413-14. The Supreme Court summarily affirmed this result. Thus, it is

clear that the simple fact that the Virginia General Assembly may have intended to draw

a majority-black congressional district, even if proven, cannot by itself trigger strict scrutiny.

10. Unless a court determines that race was the only factor considered by the 

legislature — and such a conclusion is unwarranted in any case where (as here) partisan 

political concerns played a role in the redistricting process, see Bush v. Vera. 116 S. Ct. at 

1952 — determining whether "the legislature subordinated traditional race-neutral districting 

principles . . .  to racial considerations," id. at 1951_, requires a searching evaluation of the 

precise context of the districting decisions in question.

22



11. Moreover, it is axiomatic that not all "traditional districting practices" carry equal 

weight in the analysis. The Supreme Court has required that we make a determination 

whether "traditional race-neutral districting principles" have been subordinated to race. In 

Virginia, with the exception of the immediate post-Civil War period, one of the 

Commonwealth’s central objectives in the electoral process (of which redistricting was a
v

part) was to prevent African Americans from enjoying political power or exercising the use 

of the franchise effectively so as to achieve political power. During the first two-thirds of 

the twentieth century, Virginia’s governing authorities traditionally postponed or avoided 

reapportionment as a means of enhancing or preserving their political control of the 

Commonwealth. Tolerance of severe malapportionment was a fortiori intended to avoid 

recognizing the potential voting strength of Virginia’s African-American citizens.

12. Although Virginia legislatures long utilized counties and independent cities as 

the building blocks of its legislative or congressional districts, the feasibility of this 

"traditional districting practice" depended upon, inter alia, malapportionment and refusal 

to recognize black voting strength. In the wake of the Supreme Court’s 1960’s 

reapportionment decisions and the reduction of permissible population deviations, for 

example, it was increasingly necessary for the General Assembly (undertaking the 

reapportionment task under federal court supervision) to cross such local jurisdictional 

boundaries in drawing congressional districts. And, after passage of the Voting Rights Act 

(and especially the amendments to the Act in 1982), crossing such boundaries was also 

increasingly required in districting plans for the General Assembly itself to avoid dilution 

of minority voting strength. We therefore hold that, at least in the context of Virginia, the

23



fact that the Third Congressional District subdivides county and city boundaries is not alone 

sufficient to establish the critical element of "subordination" of "race-neutral" traditional 

districting principles.

13. Our conclusion is bolstered by an examination of congressional districts that the

Supreme Court has accepted. In DeWitt v. Wilson, described above, the Special Masters’

plan explicitly set out to draw majority-minority districts with the "highest possible

consideration" given to the requirements of the Voting Rights Act. Wilson v. Eu, 1 Cal.

4th at 742, 823 P.2d at 561, 4 Cal. Rptr. 2d at 395. As detailed in the Special Masters’

report, 1 Cal. 4th at 730, 772-93, 823 P.2d at 560, 582-96, 4 Cal. Rptr. 2d at 394, 416-30,

numerous majority-minority districts were intentionally created by splitting counties and

municipalities. In the words of the Special Masters:

In order to make it more likely that these districts would not be challenged 
by the United States Attorney General, we constructed districts in these areas 
that required preclearance on the basis of a more expansive interpretation of 
the [Voting Rights] Act, which required more subordination of California law 
than would otherwise have been the case.

1 Cal. 4th at 770, 823 P.2d at 580, 4 Cal. Rptr. 2d at 414 (emphasis added); see also, e.g., 

id., 1 Cal. 4th at 770, 823 P.2d at 582, 4 Cal. Rptr. 2d at 416 ("But for the need for absolute 

certainty for preclearance approval without delay, we would not have divided Monterrey 

County"); id , 1 Cal. 4th at 790, 823 P.2d at 594, 4 Cal. Rptr. 2d at 428 (majority-minority 

district "divides Fresno, Visalia, Tulare and Bakersfield (the latter by a ‘hook’ encircling the 

city to the south and then to the east)"); ick, 1 Cal. 4th at 778, 823 P.2d at 586, 4 Cal. Rptr. 

2d at 420 ("In order to maintain the African-American basis for representation, we decided 

to recast District 55 by dividing the city of Compton in order to bring the number of

24



African-Americans in the district up to the percentage of the existing district"). The 

California Supreme Court approved the plan even though one of the State’s redistricting 

criteria specifically defined in its Constitution and prior rulings of the Court was to keep 

counties and municipalities whole, 1 Cal. 4th at 715, 719, 823 P.2d at 550, 553, 4 Cal. Rptr. 

2d at 384, 387; the three-judge court found no Shaw violation because "the Master’s Report 

evidences a judicious balancing of the many factors appropriate to redistricting, one of 

which was the consideration of the Voting Rights Act," DeWitt, 856 F. Supp. at 1414, and 

the Supreme Court summarily affirmed on the same day that it decided Miller.

14. Similarly, in Vera v. Bush, 861 F. Supp. 1304 (S.D. Tex. 1994), affd 116 S. Ct. 

1941 (1996), the three-judge court did not subject Texas’ Congressional District 28 to strict 

scrutiny even though it was "designedly" an Hispanic district, was elongated, and had 

"fingers [that] do jut into the small cities of Seguin and New Braunfels . . . excising] the 

minority, largely Hispanic populations from those cities," 861 F. Supp. at 1344. The court 

found that when compared with the other districts in Texas, "Congressional District 28 is 

not highly irregularly shaped" and that the "[legislature took no extraordinary measures 

that render this district so out of line with traditional districting criteria as to raise a serious 

question about racial gerrymandering." jd. The Supreme Court intimated no doubt with 

respect to this portion of the ruling.

15. The Fourth Circuit has similarly refused to hold that division of municipalities 

in the process of creating a majority-black district requires strict scrutiny or is invalid. Cane 

v. Worcester County, 35 F.3d 921, 926-27 n.6 (4th Cir. 1994), cert, denied, 115 S. Ct. 1097 

(1995).

25



16. With respect to every districting plan that the Supreme Court has disapproved 

since Shaw v. Reno, "maximization" of the number of majority-minority districts was a 

critical factor in the Court’s conclusion that race-conscious districting had trumped 

traditional race-neutral districting principles. See Miller, 115 S. Ct. at 2593; Shaw v. Hunt. 

116 S. Ct. at 1904; Bush v. Vera, 116 S. Ct. at 1959. Drawing as many majority-minority 

districts as possible, consistent with one-person, one-vote requirements, will often require 

subordinating other interests since, as a logical matter, maximizing any one interest in the 

redistricting process will constrain the achievement of all other goals.

17. In contrast to Georgia, North Carolina and Texas, Virginia’s General Assembly 

did not follow a "maximization" policy in the districting plan challenged in this litigation. 

It rejected, proposals that would have drawn two majority-black districts in favor of a plan 

that created only one. Moreover, the plan achieved nothing even remotely approaching 

proportionality, let alone superordinate representation. See, e.g., Shaw v. Hunt. 116 S. Ct. 

at 1904. In a 18.8 per cent black state, the General Assembly rejected plans that would 

have created two minority districts out of eleven (18.1 per cent of the districts) in favor of 

a plan that created a single majority-black district (9.0 per cent of the districts).

18. We thus conclude that the redistricting plan under attack in this case does not 

reflect the pursuit of the sort of "maximization" policy that has been a significant factor in 

the Supreme Court’s decisions to apply strict scrutiny in the congressional districting cases 

from Georgia, North Carolina and Texas.

19. A second consideration in the Supreme Court’s threshhold analysis has been the 

use of extremely irregular district boundaries; "[significant deviations from traditional

26



districting principles, such as the bizarre shape and noncompactness demonstrated by the 

districts here, cause constitutional harm insofar as they convey the message that political 

identity is, or should be, predominantly racial." Bush v. Vera, 116 S. Ct. at 1961. It is 

important to bear in mind, however, that the federal Constitution does not itself articulate 

or establish a minimum standard of compactness or regularity. See Shaw v. Reno. 509 U.S. 

at 647; Bush v. Vera, 116 S. Ct. at 1960 (rejecting as "impossibly stringent" a requirement 

that majority-minority districts be as compact as possible to avoid strict scrutiny).

20. As the Bush v. Vera three-judge court’s treatment of District 28 recognizes, strict 

scrutiny does not apply to majority-minority districts that are not materially less compact 

or more oddly configured than other districts in the same plan whose shape was dictated 

by partisan or other non-racial factors. Accord, e.g.. Jeffers v. Clinton. 730 F. Supp. 196, 

207 (E.D. Ark. 1989), affd mem., 498 U.S. 1019 (1991). Applying this test, the Virginia 

Third Congressional District is not so highly irregular as to require the application of the 

strict scrutiny analysis.

21. In both Shaw v. Hunt and Bush v. Vera, the Supreme Court relied quite heavily

on mathematical measures of compactness. See, e.g., Shaw v. Hunt, 116 S. Ct. at 1901; 

Bush v. Vera, 116 S. Ct. at 1952. While political scientists disagree on the accuracy and 

significance of such measures, the most widely cited compilation of scores on such measures 

for post-1990 Congressional districts appears in Richard H. Pildes & Richard G. Niemi, 

Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District

Appearances after Shaw v. Reno, 92 MICH. L. REV. 483 (1993), which the Supreme Court 

has cited. See, e.g.. Bush v. Vera, 116 S. Ct. at 1952. Notably, four of the five districts that

27



the Supreme Court has condemned under Shaw appear on the article’s list of the 28 most 

irregular districts in the nation, see id. at 565. But Virginia’s Third Congressional District 

does not earn a place on Pildes and Niemi’s list; nor, in fact, does any Virginia district. Id.

22. Pildes and Niemi’s data in fact show that dispersion scores of Virginia’s new 

congressional districts are quite close to the scores of the post-1980 reapportionment’s
V

districts; indeed, using this measure, the Commonwealth’s least compact district in the 

current plan is more compact than the least compact district was after 1980. See id. at 573. 

Hence the statistical data do not support the contention that the irregularity of the 

boundaries of the Third District is materially greater than has been traditionally true in the 

Commonwealth.

23. The Third District is not significantly more irregular than other districts created

by the 1990 map, either, and specifically not more irregular than districts created for 

partisan political reasons in areas of the Commonwealth where the African-American 

population is too dispersed to meet the first Gingles criterion. As we discuss infra, among 

the undisputed objectives of the General Assembly that created the post-1990 districting 

map was the creation of an additional Democratic congressional district in northern 

Virginia. In order to achieve this, the legislature fashioned shapes equally or more bizarre 

than that of the Third, including the 81%-white Eleventh Congressional District in northern 

Virginia: "The 11th [has] a shape that vaguely recalls the human digestive tract."

Congressional Quarterly’s Politics in America 1994: The 103rd Congress (P. Duncan, ed., 

1994), p. 1602.

28



24. Plaintiffs rely upon a different published article that characterizes the Third 

Congressional District as being among the top 10% of congressional districts in irregularity 

based upon any one of three different mathematical measures. We decline to apply strict 

scrutiny based upon this considerably broader definition of irregularity, which places the 

Third District among the 43, not 28, least compact districts — especially in light of the facts 

that (a) because Virginia borders the Atlantic Ocean and is divided geographically by 

Cheasapeake Bay and numerous rivers along which county or city boundaries run, even 

congressional districts that follow local jurisdictional boundaries are likely to score high on 

some measures of noncompactness, and (b) the Third District is not materially less compact 

than other districts in either the 1980 plan or the current map.

25. The Supreme Court cautioned in Miller that

Federal court review of districting legislation represents a serious intrusion 
on the most vital of local functions. . . . The courts, in assessing the 
sufficiency of a challenge to a districting plan, must be sensitive to the 
complex interplay of forces that enter a legislature’s redistricting calculus. . . . 
[CJourts [must] exercise extraordinary caution in adjudicating claims that a 
state has drawn district lines on the basis of race.

115 S. Ct. at 2488. We accordingly approach the decision whether to apply strict scrutiny

to the Third Congressional District with considerable caution and a desire to avoid

extending the Supreme Court’s holdings in a manner that might "throw into doubt the vast

majority of the Nation’s 435 congressional districts, where presumably the States have

drawn the boundaries in accordance with their customary districting principles . . . even

though race may well have been considered in the redistricting process," Miller, 115 S. Ct.

at 2497 (O’Connor, J., concurring). To date, every district struck down by the Supreme

Court is either the product of an effort at maximization or was among the handful of the

29



most irregularly shaped districts in the nation. The Virginia map meets neither of these 

conditions; instead, it more closely resembles the experience of California in DeWitt v. 

Wilson, which the Supreme Court found to pass constitutional muster.

26. In Bush v. Vera the Supreme Court applied strict scrutiny in part because it 

concluded that race contaminated the entire districting process in Texas by being applied 

unnecessarily as an illegitimate proxy for partisan considerations. This was the flaw that 

doomed Texas’ 30th Congressional District. As Justice O’Connor explained in her 

concurrence, the three Gingles prerequisites were satisfied by the demographic distribution 

of the African-American population in Dallas County and polarized voting patterns, making 

the decision to create a majority-minority district unexceptional. 116 S. Ct. at 1970. But 

the goal of creating a "Gingles district" was abandoned in favor of creating an irregularly 

shaped majority-black district precisely in order to assign black voters to adjacent districts 

to shore up white Democratic incumbents. The fact that race was used beyond what was 

necessary for § 2 purposes, in order to achieve partisan political goals, meant that race 

predominated in the process, Bush v. Vera, 116 S. Ct. at 1956-57 & n.*; see also Shaw v. 

Hunt, 116 S. Ct. at 1901 (race predominates where factors not balanced but partisan 

concerns "came into play only after the race-based decision had been made").

27. Virginia’s reapportionment process stands in sharp contrast to Texas’. Plaintiffs 

have never alleged, nor is there any evidence to support an assertion that, as in Texas, race 

was used as a proxy for political affiliation in order to affect the partisan balance in districts 

adjacent to the Third District. Rather, plaintiffs concede that partisan politics played a 

heavy role in shaping the current map. It is undisputed that the Democratically controlled

30



General Assembly set out to force current Governor George Allen to run for reelection 

against another Republican incumbent and to add the additional seat to which Virginia was 

entitled under the 1990 Census as a Democratic seat in Northern Virginia. Cf. Republican 

Party of Virginia v. Wilder. 774 F. Supp. 400, 402 & n.3 (1991 state legislative redistricting 

"paired" 14 Republican incumbents with each other and only two Democrats, one of whom 

advanced to the Senate in a special election leaving the other to run for the House of 

Delegates without primary opposition). Creating one or more majority-black districts was 

clearly secondary to these partisan political concerns.

28. There were numerous complaints about the partisan effects of the congressional 

redistricting at the public hearings held by the General Assembly, with speakers 

characterizing the map as, for example, treating voters "as nameless numbers to be

exploited for crass partisan ends," Jt. Ex.  [November 13, 1991 Public Hearing, p. 50],

having as its "priority . . .  to perpetuate incumbency," id  [November 13, 1991 Public 

Hearing, p. 54], and as "a partisan political game," id. [November 13, 1991 Public Hearing, 

p. 90],

29. The Court must also weigh the unquestioned fact that the federal constitutional

requirement of population equality with minimal deviation was also an ingredient 

contributing to the ultimate configuration of the Third District. As a result of population 

increases within them as well as the Commonwealth’s overall gain in population between 

the 1980 and 1990 censuses, Districts 1, 2, 3, and 4 (as drawn after the 1980 census) all had 

unacceptable deviations from the mean and were too large to be retained without 

modification after 1990. See Jt. Ex. __ ["Drawing the Line," January, 1991, attached to

31



October 11, 1991 Public Hearing transcript]. The reconfigured Third Congressional District 

included portions of these four former congressional maps.

30. Finally, the evidence reflects that Virginia has traditionally divided the Tidewater

region in order to maximize the number of congressional districts that include a military

installation so as to ensure that the maximum number of members of the state’s delegation

will seek to protect and preserve these institutions and the economic and other benefits that

the State realizes from them. See Jt. Ex. _  [October 11, 1991 Public Hearing, pp. 44, 58;

November 13, 1991 Public Hearing, pp. 27-18. Members of the General Assembly

exhibited considerable concern about plans that would not further this objective:

I would be curious to know how many facilities such as yours that abut the 
Chesapeake Bay that are actually clumped into one district and the one 
congressional district would be represented by one congressman. I think it’s 
crucial that we keep that in mind. . . .  In other words, making sure that we 
have enough congressional voice by, in other words, how many shipyards are 
in the third, how many shipyards perhaps, or NASAS or whatever, are in the 
4th. I think that needs to be a driving factor here because we have got to 
keep our people at work.

Id. [November 13, 1991 Public Hearing, pp. 39-40 (statement of Del. Cooper)]. Some of 

the plans considered by the General Assembly in 1991 served this goal by placing the 

dividing line between congressional districts across the Hampton Roads; the plan ultimately 

adopted accomplishes the objective by crossing the Roads while subdividing peninsular 

areas. It is obvious to the Court that dividing up military installations among a number of 

separate congressional districts, as the current map does, was an important factor taken into 

account by the legislature when it enacted the current plan.

31. In light of the above, the Court is unable to conclude that race predominated 

in the configuration of the present districting scheme by the General Assembly and that

32



other traditional districting principles were subordinated. Every plan considered on the 

floor of the General Assembly, including those submitted by members of both the majority 

and minority political parties, included at least one district out of eleven in which a majority

of the population was African American. See Jt. Ex. _ [1991 Section 5 Submission,

Legislative History of 1991 Virginia Congressional Redistricting & Table List of 

Congressional District Plans]. Plaintiffs have failed to prove to the satisfaction of this 

Court that race — as opposed to other objectives of the legislature: incumbent protection, 

the desire to minimize Republican strength and gain partisan advantage for the Democrats, 

the desire to to create an additional district in Northern Virginia that would likely elect a 

Democratic candidate, and the policy of maximizing the number of representatives with a 

piece of the Hampton Roads defense establishment in their districts -- caused the choice 

of the current plan over its alternatives.

32. Accordingly, the Court concludes that the Third Congressional District need not 

be subjected to "strict scrutiny" in assessing its constitutionality and in order to determine 

whether plaintiffs have established their distinct "Shaw"-type claim. The Supreme Court’s 

decisions to date suggest that this is sufficient to end the case. Where the Court has 

concluded, as in Georgia, Texas and North Carolina, that strict scrutiny applies, 

redistricting plans have been struck down. Where it accepted lower court determinations 

that strict scrutiny was inapplicable, as in California and Congressional District 28 in Texas, 

the states’ configurations were left in place.

33. However, out of an abundance of caution and to obviate the need for a retrial 

of this cause, the Court will consider whether, on the assumption that strict scrutiny did

33



apply in this case, the plaintiffs have met their burden of showing either that the General 

Assembly was not pursuing a compelling state interest in fashioning the plan or that it is 

not narrowly tailored for that purpose.

34. The primary claim by defendant-intervenors to meet the "strict scrutiny" claim 

is that the current plan was fashioned by the General Assembly to avoid potential liability 

under Section 2 of the Voting Rights Act. As previously noted, a majority of the Supreme 

Court has indicated its agreement that such a purpose, if adequately demonstrated, 

constitutes a "compelling interest." Thus the question that must be determined at this stage 

of the inquiry is whether the General Assembly had "a strong basis in evidence . . .  for 

concluding that the creation of a majority-minority district [wa]s reasonably necessary to 

comply with § 2," Bush v. Vera, 116 S. Ct. at 1960 (emphasis added). On this record, the 

Court has little hesitation in concluding the this standard was met when the legislature 

acted.

35. Gingles sets out three preconditions for Section 2 liability: (1) the minority 

group is "sufficiently large and [sufficiently] geographically compact to constitute a majority 

in a single-member district"; (2) the minority group is "politically cohesive"; and (3) the 

white majority "votes sufficiently as a bloc to enable it . . . usually to defeat the minority’s 

preferred candidate." Gingles, 478 U.S. at 50-51 (emphasis added). Plaintiffs have not 

contested the existence of the second factor, see Memorandum in Support of Motion for 

Summary Judgment, at 18. We turn to the remaining prerequisites.

36. The Court has already observed that every congressional districting plan 

considered by the General Assembly included at least one majority-African-American

34



district. This fact alone strongly suggests the existence of sufficient geographic compactness 

to satisfy the first prong of Gingles.

37. The first Gingles factor does not demand compactness in the shape of a district 

in an absolute sense; rather, adequate compactness must be determined functionally, in light 

of the State’s geography and the manner in which it has drawn non-minority districts. See
V

Houston v. Lafayette County, 56 F.3d 606 (5th Cir. 1995); Clark v. Calhoun County, 21 

F.3d 92, 95-96 & n.2 (5th Cir. 1994); Cane v. Worcester County; Marylanders for Fair 

Representation v. Schaefer, 849 F. Supp. 1022 (D. Md. 1994); DeWitt v. Wilson. 856 F. 

Supp. at 1413; Jeffers v. Clinton; Dillard v. Baldwin County Bd. of Educ., 686 F. Supp. 

1459, 1465-66 (M.D. Ala. 1988). Neither Section 2 nor the Constitution demands a higher 

standard of compactness for majority-minority districts than for other districts drawn by the 

State, see Miller, 115 S. Ct. at 2497 (O’Connor, J., concurring). Applying these principles 

to the evidence in this matter, and treating the Third Congressional District as a 

hypothetical liability district, see Shaw v. Hunt, 116 S. Ct. at 1905-06 & n.9 (even well- 

grounded belief that remedial action was necessary will not justify creation of majority- 

minority district that includes only 20% of minority voters whose voting strength must, 

arguendo, be given effect to avoid § 2 liability), we are satisfied that there is a sufficiently 

dense African-American population concentration running from the Richmond are to the 

Tidewater to meet the first Gingles precondition.

38. The Court also concludes that the third Gingles factor — sufficient bloc voting 

by whites usually to defeat minority-preferred candidates — was present in 1991 when the 

legislature acted and unfortunately remains extant today throughout much of the

35



Commonwealth. Voting patterns in the areas encompassed by the Third Congressional 

District in the years preceding the legislature’s action were exhaustively analyzed by the 

expert witnesses for the plaintiffs, the State and the defendant-intervenors in this action, 

using the basic methodology relied upon by the Supreme Court in Gingles (ecological 

regression and homogeneous precinct analysis). All of the experts agreed that studying the 

electoral results in contests involving both African-American and white candidates revealed 

high levels of polarization such that minority candidates could rarely prevail where the 

electorate was majority-white even if they garnered the overwhelming share of the African- 

American vote. These phenomena explain the extraordinarily low numbers of black elected 

officials in the Commonwealth until the advent of single-member districting with majority- 

minority districts after passage of the 1982 Amendments to the Voting Rights Act.

39. Plaintiffs rely essentially upon four elections to support their claim that minority- 

supported non-white candidates were not effectively shut out of the electoral process by 

white bloc voting at the time the legislature enacted the challenged plan containing the 

Third Congressional District: two instances in which Rep. Scott was elected to a Virginia 

Senate seat from a majority-white legislative district, and Douglas Wilder’s successful 

statewide campaigns for Lieutenant Governor and Governor. We agree with the State and 

the defendant-intervenors that these isolated instances are inadequate to invalidate or 

outweigh the findings of otherwise consistent polarization and extremely low white 

crossover voting in interracial contests. As the Supreme Court stated in Gingles, where a 

challenged voting system "generally works to dilute the minority vote, it cannot be defended 

on the ground that it sporadically and serendipitously benefits minority voters." 478 U.S.

36



at 76. Sustained minority electoral success must be shown, idL at 78. Accord, e.g., Jenkins 

v. Red Clay Cons. School Dist. Bd. of Educ.. 4 F.3d 1103, 1123 (3d Cir. 1993).

40. Plaintiffs also contend that the experts for the State and defendant-intervenors 

produced flawed analyses and drew incorrect conclusions about the third Gingles 

precondition because they focused on elections involving African-American and white 

candidates only, rather than including contests in which all of the candidates were white. 

It is one thing to suggest that white candidates may occasionally be preferred in individual 

races by a majority of African-American voters. See Gingles, 478 U.S. at 67 ("it will 

frequently [but not always] be the case that a black candidate is the choice of blacks, while 

a white candidate is the choice of whites") (opinion of Brennan, J., joined by Marshall, 

Blackmun & Stevens, JJ.); Collins v. City of Norfolk, 883 F.2d 1232, 1241 (4th Cir. 1989) 

(noting extremely heavy proportion of black vote for white candidate), cert, denied. 498 

U.S. 938 (1990). It is another thing entirely to contend that the failure to elect significant 

numbers of black officials over a sustained period of time — following a much longer period 

during which black electoral participation was first strictly forbidden and only more recently 

was even grudgingly tolerated — represents nothing more than the outcome desired by black 

citizens. This assertion is especially doubtful since, continuing up to the present time, the 

the number of black candidacies has been depressed by the African-American community’s 

lack of financial resources relative to those available to white contestants. We join those 

courts which have suggested that the probative value of white-on-white election contests 

is highly doubtful and that regression analyses of such contests should be supplemented 

with anecdotal and other evidence indicating that white candidates are truly favored choices

37



of African-American voters. As the Court of Appeals for the Eleventh Circuit, sitting en 

banc, has put it:

Particularly where voting is extremely polarized by race in elections in which 
black candidates participate, white-on-white elections in which a small 
majority (or a plurality) of black voters prefer the winning candidate seem 
comparatively less important.

In holding as we do, however, wfe do not foreclose the consideration 
of electoral races involving only white candidates whee the record indicates 
that one of the candidates was strongly preferred by black voters. Under 
such circumstances, the preference of the black electorate might be proved 
through the use of anecdotal testimonial evidence, polling data, a review of 
the appeals made during the campaign, and turnout information indicating 
whether black voters were energized to support a particular white candidate.

In any event, the conclusion that the candidate of choice of black 
voters won a majority of the white-on-white judicial elections at issue in this 
case partially misconstrues the evidence in the record. In the great majority 
of those elections, the candidate of choice of black voters was also the 
preferred candidate of the white voters, thus making those elections of 
relatively little use in evaluating the power of white bloc voting.

Nipper v. Smith, 39 F.3d 1494, 1540-41 (11th Cir. 1994) (en banc), cert, denied, 115 S. Ct.

1795 (1995). To the same effect, see Jenkins v. Red Clay Cons. School Dist. Bd. of Educ.,

4. F3d at 1128-29; Westwego Citizens for Better Government v. City of Westwego. 946 F.2d

1109, 1119 n.15 (5th Cir. 1991); Citizens for a Better Gretna v. City of Gretna, 834 F.2d

496, 503-04 (5th Cir. 1987); Smith v. Clinton, 687 F. Supp. 1310, 1318 (E.D. Ark.) (three-

judge court) (the Voting Rights Act is violated if "candidates favored by blacks can win, but

only if the candidates are white"), affd mem., 488 U.S. 988 (1988).

41. The plaintiffs have introduced none of the types of anecdotal or similar evidence

recommended in these cases to establish the justification for discounting the strong

38



evidence of white racial bloc voting sufficient to defeat black candidates in most contests 

by analyzing white-on-white races; indeed, plaintiffs’ expert made no effort whatsoever to 

assess the factors described by these courts before concluding that the candidates in white- 

on-white races who received the highest vote totals among black voters were ipso facto the 

"preferred candidates" of the African-American community. Such an approach effectively 

penalizes black voters for not staying at home, cL Collins, 883 F.2d at 1239-40 (holding that 

district court similarly erred by adopting approach that penalized black voters for not 

single-shot voting), and we reject it. We conclude that there was a "strong basis in 

evidence" to support the conclusion that the three Gingles preconditions were satisfied with 

respect to congressional districting at the time of the 1990 census.

42. Of course, meeting the preconditions is insufficient to make out a Section 2 

violation. As the Supreme Court emphasized in DeGrandy v. Johnson, 114 S. Ct. 2647 

(1994), that determination must await the results of a searching evaluation of the "totality 

of the circumstances" to evaluate whether minority voters have less opportunity than whites 

to participate in the political process and to elect representatives of their choosing, id, at 

2656-60. The legislative history of the 1982 amendments to the Voting Rights Act, and in 

particular the Senate Report, S. Rep. No. 97-417, 97th Cong., 2d Sess. 28-29 (1982), have 

long provided guidance as to the types of factors that should be weighed in making that 

determination. See Gingles, 478 U.S. at 44-45. Additionally, the Court in DeGrandy made 

clear the relevance of considering the presence or absence of "substantial proportionality" 

between the number of majority-minority districts and the minority members’ share of the 

relevant population. 114 S. Ct. at 2658; see id, at 2664 (O’Connor, J., concurring) ("Lack

39



of proportionality is probative evidence of vote dilution. . . . Thus, in evaluating the 

Gingles preconditions and the totality of the circumstances a court must always consider 

the relationship between the number of majority-minority districts and the minority group’s 

share of the population").

43. As to proportionality, the facts are indisputable. There were no majority- 

minority Congressional districts in 1980, in 1970, in 1960 or indeed, in the twentieth century 

if ever in Virginia’s history; yet the Commonwealth has always had a substantial African- 

American population, which in 1990 constituted approximately 18% of its total citizenry. 

These facts were unavoidable to anyone active in the political life of the Commonwealth 

and, as Justice O’Connor suggested, they were strongly probative of vote dilution at the 

time the General Assembly was faced with the redistricting task after the 1990 Census.

44. With respect to the remaining "Senate factors" and the "totality of the 

circumstances," we note preliminarily that there is no requirement that any particular 

number of these circumstances be found to be present, or that a majority of them point one 

way or another, in order to support a finding of vote dilution under the "totality" approach. 

Gingles, 478 U.S. at 45.

45. In our factual findings, this Court has set out some of the overwhelming evidence 

of the existence of a number of the Senate factors in 1991 that supported the conclusion 

suggested by the lack of "proportionality" for African-Americans in congressional districting: 

namely, that the existing apportionment scheme diluted the voting strength of this group 

of Virginia residents. For example: the Commonwealth has a long and (for far too many 

years) harsh history of official discrimination dramatically curtailing black participation in

40



the political process; electoral contests in the area within which the Third Congressional 

District was created were marked by very high levels of polarized voting; many of the cities 

and counties in that area utilized at-large multi-member election procedures that enhanced 

the opportunity for discrimination; participation in the political and electoral processes by 

there continues to be a dramatic disparity between Virginia’s African-American population 

and its white population as indicated by a wide variety of socio-economic measures; and 

African-Americans in the Commonwealth continue to lag behind whites in active 

campaigning, candidacy for office and political participation in general. (As to the latter 

two factors, we note that no causal nexus is required to make out a Section 2 violation, see 

S. Rep. No. 97-417, 97th Cong., 2d Sess. 29 n.114 (1982).)

46. We believe the conclusion that enactment of a redistricting plan in 1991 that 

failed to create one or more majority-black districts would, under the totality of the 

circumstances, subject the Commonwealth to potential Section 2 liability, is inescapable, 

and we so hold.

47. Moreover, the evidence indicates that political leaders and legislators would have 

been aware both of these underlying facts and of their potential legal consequences. 

During the decade preceding the 1991 reapportionment, numerous local governments, both 

county and city, across the state — including a substantial number of jurisdictions from 

portions of which the Third Congressional District was eventually constructed — were sued 

in federal court under Section 2 of the Voting Rights Act and were held liable to, or settled 

the lawsuits by agreeing to, create majority-minority single-member districts to remedy 

dilution of African-American voting strength. We have been provided with a sampling of

41



the newspaper coverage of such events across the state, from the suburbs of Washington, 

D.C. to the state capital to the Tidewater anchor municipality of Norfolk. We find that it 

is unlikely in the extreme that members of the General Assembly that enacted the 

redistricting plan could have been unaware of the statewide patterns of polarized voting and 

the key role that such evidence played in the many successful Section 2 lawsuits after
i

passage of the 1982 amendments to the Voting Rights Act. Neither the Commonwealth 

nor the defendant-intervenors rely upon materials generated for this litigation of which the 

General Assembly would have no reason to be aware. See Shaw v. Hunt, 116 S. Ct. at 

1903.

48. The Court thus concludes that if strict scrutiny is to be applied, the legislative 

determination to create at least one majority-minority congressional district was amply 

justified by the strong evidentiary basis, of which it was aware, for imposing Section 2 

liability in the absence of such action.

49. The final issue that this Court must review is whether or not the Third 

Congressional District is narrowly tailored to address Virginia’s compelling interest in 

avoiding Section 2 liability. A number of characteristics of the District, and the overall 

reapportionment of which it is a part, to which we have already adverted, persuade us that 

even if race is considered to have predominated in the enactment process, the plan is 

sufficiently tailored to pass constitutional muster: First, the plan does not achieve, much 

less exceed, proportionality, see DeGrandy. Second, the General Assembly did not create 

a greater number of majority-minority districts than necessary to address the Section 2 

compelling interest; rather, it rejected proposals that had been introduced that would have

42



created two majority-black districts. Third, as extensively covered above, the Third 

Congressional District is not dramatically less compact or regular in shape than other 

districts drawn, for purely non-racial reasons, by the 1991 and predecessor General 

Assemblies of Virginia. The fact that it splits local jurisdictions does not make it an 

improper remedial device. See, e.g., Cane v. Worcester County, 59 F.3d 165 (table), 4th 

Cir. No. 94-1579 (June 16, 1995), 1995 WL 371008,’ text at n.3, cert, denied, 116 S. Ct. 

2546 (1996). We repeat the Supreme Court’s teaching that a district fashioned in a race­

conscious manner to meet a state’s compelling interest in avoiding a Section 2 violation 

need not "have the least possible amount of irregularity in shape, making allowances for 

traditional districting criteria," Bush v. Vera, 116 S. Ct. at 1960, nor must the district 

"defeat rival compact districts designed by plaintiffs’ experts in endless ‘beauty contests,’" 

id. A district drawn in order to comply with Section 2 of the Voting Rights Act must 

simply be "reasonably compact and regular" and "must not subordinate traditional districting 

principles to race substantially more than is "reasonably necessary" to avoid § 2 liability." h i  

(emphasis added). Fourth, unlike in Shaw v. Hunt, 116 S. Ct. at 1906, the Third 

Congressional District does "remedy the anticipated violation or achieve compliance" with 

the Voting Rights Act by creating the majority-minority district in an area where the 

minority population "is ‘geographically compact,’" thus "relieving the vote dilution." Finally, 

the Third Congressional District does not "pack" substantially more black voters in the 

district than necessary to address the vote dilution problem within the "limited degree of 

leeway" afforded States further such compelling interests, Bush v. Vera, 116 S. Ct. at 1960.

*A copy of this opinion is attached; see 4th Cir. R. 36(c).

43



Although some courts have approved remedial plans creating districts with slightly smaller

proportions of minority voters, there is also ample support in the caselaw for districts of

the same composition as the Third District. See, e.g.. United Jewish Organizations. Inc.

v. Carey, 430 U.S. 144, 163-64 (1977); Ketchum v. Byrne, 740 F.2d 1398, 1416 nn.20, 21

(7th Cir. 1984), cert, denied, 471 U.S. 1135 (1985); Neal v. Coleburn, 689 F. Supp. 1425,

1438 (E.D. Va. 1988); Mississippi v. United States, 490 F. Supp. 569, 575 (D.D.C. 1979),

affd, 444 U.S. 1050 (1980). The record reflects that the legislature acted to insure that its

remedy would be effective rather than taking race into account unnecessarily:

If I had to make a judgment today, I’m more cautious if I have a 60 or 60 
plus minority, I mean majority seat, black majority seat, because I think 
historically in Virginia has never elected a black Congressman, and I think 
there’s a threshhold, you know, we have elected black legislators and 
senators, so forth, but we don’t have historical perspective.

I think if you would err, I would err on that caution to try to make sure the 
seat we do create would meet muster instead of trying to divide them so thin 
that they don’t . . . .

Jt. E x .__, October 11, 1991 Public Hearing, p. 99 (statement of Del. Quillan).

50. The Court thus concludes that plaintiffs have failed to establish by admissible 

evidence that the Third Congressional District of Virginia, or the reapportionment plan of 

which it is a part, violates the Fourteenth Amendment to the United States Constitution.

44



Respectfully submited,

J. GERALD HEBERT 
800 Parkway Terrace 
Alexandria, VA 22302 
(703) 684-3585

‘ NEIL BRADLEY 
M. LAUGHLIN McDONALD 
MAHA S. ZAKI 
American Civil Liberties 

Union Foundation, Inc.
44 Forsyth Street, N.W., Suite 202 
Atlanta, GA 30303 
(404) 523-2721

ELAINE R. JONES 
Director-Counsel 
NORMAN J. CHACHKIN 
JACQUELINE BERRIEN 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, 16th floor 
New York, NY 10013 
(212) 219-1900

PENDA D. HAIR 
CASSANDRA Q. BUTTS 
NAACP Legal Defense and 

Educational Fund, Inc.
1275 K Street, N.W., Suite 301 
Washington, D.C. 20005 
(202) 682-1300

PAMELA S. KARLAN 
500 Massie Road 
Charlottesville, VA 22903 
(415) 723-0615

BY_____________________________________________
ATTORNEYS FOR DEFENDANT-INTERVENORS

45



Certificate of Service

I hereby certify that on this 3rd day of September, 1996, a true and correct copy of 

the foregoing Defendant-Intervenors’ Proposed Findings of Fact and Conclusions of Law 

was served upon counsel for the other parties hereto, by overnight delivery addressed as 

follows:

Stephen A. Katsurinis, Esq. 
Magenheim-Bateman-Robinson 
700 East Main Street, Suite 1603 
Richmond, Virginia 23219

Gregory E. Lucyk
Senior Assistant Attorney General
Mary E. Shea
Assistant Attorney General 
Commonwealth of Virginia 
900 East Main Street 
Richmond, Virginia 23219

Hon. Robert R. Merhige, Jr. 
United States District Court 
1000 East Main Street 
Richmond, Virginia 23219

Hon. T.S. Ellis, III 
United States District Court 
401 Courthouse Square 
Alexandria, Virginia 22314

Hon. H. Emory Widener 
United States Court of Appeals 

for the Fourth Circuit 
180 W. Main Street, Room 123 
Abingdon, Virginia 24210

46



and by United States mail, postage prepaid, addressed as follows

Paul Loy Hurd, Esq.
1101 Royal Avenue 
P.O. Box 2190
Monroe, Louisiana 71207-2190

Counsel

47



g P A G E  1

Citation Database Mode
59 F.3d 165 (Table) FOUND DOCUMENT CTA Page
Unpublished Disposition

(Cite as: 59 F.3d 165, 1995 WL 371008 (4th Cir.(Md.)))

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of 
unpublished dispositions is disfavored except for establishing res 
judicata, estoppel, or the law of the case hnd requires service of 
copies of cited unpublished dispositions of the Fourth Circuit.

(The decision of the Court is referenced in a "Table of Decisions 
Without Reported Opinions" appearing in the Federal Reporter.)

Honiss W. CANE, Jr., Plaintiff-Appellee, 
v.

WORCESTER COUNTY, Maryland; George M. Hurley; John E. Bloxom; Reginald 
T. Hancock; Floyd F. Bassett; Jeanne Lynch, Members, Worcester County Board of 

Commissioners, Defendants-Appellants, 
and

George H. DRYDEN; Hinson Finney; Mark Frostrom, Defendants.
UNITED STATES of America; Center for Voting and Democracy; Republican 

National Committee, Amici Curiae.
Honiss W. CANE, Jr., Plaintiff-Appellant,

v.
WORCESTER COUNTY, Maryland; George M. Hurley; John E. Bloxom; Reginald 

T. Hancock, Floyd F. Bassett; Jeanne Lynch, Members, Worcester County Board of 
Commissioners, Defendants-Appellees, 

and
George H. DRYDEN; Hinson Finney; Mark Frostrom, Defendants.

UNITED STATES of America; Center for Voting and Democracy; Republican 
National Committee, Amici Curiae.

Nos. 95-1122, 95-1688.
United States Court of Appeals, Fourth Circuit.

June 16, 1995.
Appeal from the United States District Court for the Middle District of North 

Carolina, at Greensboro. Russell A. Eliason, Magistrate Judge. (CR-93-50) D.Md.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Philip Antonio Owens, Appellant Pro Se.

ARGUED: Benjamin E. Griffith, GRIFFITH & GRIFFITH, Cleveland, MS, for 
Appellants. Charles Christopher Brown, BROWN, GOLDSTEIN & LEVY, Baltimore, 
Maryland, for Appellee. ON BRIEF: Edward H. Hammond, Jr., WILLIAMS,



HAMMOND, MOORE, SHOCKLEY & HARRISON, P.A., Ocean City, Maryland, for 
Appellants.
Deborah A. Jeon, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF 

MARYLAND, Centreville, Maryland, for Appellee. Deval A. Patrick, Assistant Attorney 
General, Steven H. Rosenbaum, Miriam R. Eisenstein, UNITED STATES 
DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae United States; 
Pamela Karlan, Charlottesville, Virginia; Edward Still, Birmingham, Alabama, for Amicus 
Curiae Center for Voting and Democracy.

Sandra Jane Hairston, Asst. United States Attorney, Greensboro, North 
Carolina, for Appellee.

Before WIDENER and NIEMEYER, Circuit Judges, and PHILLIPS, Senior Circuit 
Judge.

OPINION

PER CURIAM:

**1 Presently before us are appeals from the judgment of the district court 
imposing a remedial plan for electing members to the Worcester County,
Maryland, Board of Commissioners and ordering a general election under this 
plan in November 1995. We modify the decision in part and remand with 
instructions.

I .

Plaintiffs brought this action in November 1992, alleging that the at-large 
system employed for electing County Commissioners violated s 2 of the Voting 
Rights Act of 1965, as amended June 29, 1982. See 42 U.S.C.A. s 1973 (West 
1994). Following a bench trial, the district court ruled that the at-large 
electoral scheme violated s 2 by impermissibly diluting the votes of African- 
Americans. Specifically, the district court found that Plaintiffs had carried 
their burden of demonstrating that the African-American voters of the County 
were sufficiently large and geographically compact to constitute a majority in 
a single-member district and were politically cohesive; that the majority 
voted sufficiently as a bloc usually to defeat the candidate preferred by the 
minority; and that, based on the totality of the circumstances, the system for 
electing County Commissioners interacted with past and present discrimination 
to deprive the AfricanAmerican voters of the same opportunity as other members 
of the electorate to participate in the political process and to elect 
representatives of their choice. See Cane v. Worcester County, Md., 840 
F.Supp. 1081 (D. Md.1994).

The district court then requested that the County propose a remedial plan.
The plan suggested by the County was the one it had adopted during the pendency 
of this action in the district court, and was virtually identical to the 
electoral scheme held by the district court to be violative of s 2. Concluding



that this plan was inadequate because it was violative of s 2, the district 
court ordered that the County implement a system of cumulative voting. See 
Cane v. Worcester County, Md., 847 F.Supp. 369 (D. Md.1994).
Last year, in the County’s appeal from this decision, we affirmed as not 

clearly erroneous the ruling of the district court that the at-large electoral 
system violated s 2. However, we vacated the cumulative voting scheme crafted 
and ordered by the district court as a remedy for the s 2 violation and 
remanded. We concluded that because the district court, after finding the plan 
then in effect to be in violation of s 2, had immediately ordered the 
implementation of a cumulative voting scheme, it had deprived the County of an 
adequate opportunity to submit a remedial plan. Moreover, we held that the 
district court had failed to defer appropriately to the legislative preferences 
expressed by the County for its voting scheme. See Cane v. Worcester 
County, Md., 35 F.3d 921 (4th Cir.1994), cert, denied, 115 S.Ct. 1097 
(1995).

On remand, the district court afforded the County another opportunity to 
propose a remedial plan, and the County offered three plans. The plan that was 
the principal focus of the proceedings below divided the County into five 
single-member districts in which candidates ran head-to-head for election among 
only the voters of their district in both the primary and general elections. 
Although none of the districts created by this plan would contain a majority 
AfricanAmerican population, the County maintained that the plan remedied the 
2 violation because African-American voters would possess a "functional 
majority" in District 3, where the African-American voting age population was 
44.68%. This is so, the County maintained, because with its projected white 
crossover vote, African-Americans in District 3 typically could elect the 
candidate of their choice. The district court noted that to remedy a vote 
dilution violation, the minority generally is given a super-majority and that 
no remedial plan relying upon projected white crossover voting had ever been 
approved. However, the court concluded that even if it were proper to consider 
projected white crossover vote in determining the adequacy of the proposed 
remedial plan, the projected level of white crossover voting would not provide 
African-American voters with a reasonable opportunity to elect their preferred 
candidate. [FN1]

**2 Having held that none of the remedial plans offered by the County were 
acceptable, and having rejected the plan proposed by Plaintiffs that offered a 
62% African-American voting age population in one of five single-member 
districts, the district court again fashioned its own remedy. It ruled that 
primary elections would be conducted using the electoral districts submitted in 
the County’s second proposed remedial plan and that the general election would 
be conducted on a countywide basis using cumulative voting. The court further 
ordered that a general election under the new plan be conducted no later than 
November 7, 1995. See Cane v. Worcester County, Md., 874 F.Supp. 687 (D. 
Md.1995); Cane v. Worcester County, Md., 874 F.Supp. 695 (D. Md.1995).



II.

At oral argument, all parties urged that we reject the cumulative voting 
scheme imposed by the district court and agreed that the plan imposed by the 
district court should be vacated. However, the parties disagree over the 
appropriate course on remand.

The County first asserts that the second proposed remedial plan it submitted 
was adequate and that we should order the district court to implement it. We 
have no difficulty in rejecting this assertion and affirming on the reasoning 
of the district court that this plan is violative of s 2.

The County next claims that we should remand with instructions that it be 
given an additional 90 days in which to attempt to formulate a new plan. It 
maintains that this alternative relief is appropriate because it was not given 
an adequate amount of time in which to develop a remedial plan since the 
district court ordered that it submit a plan within ten days after this court 
denied the County’s petition for rehearing and suggestion for rehearing en 
banc.

The County has been given more than a sufficient opportunity to submit a 
remedial plan that would satisfy s 2. The district court requested that the 
County provide a remedial plan in January 1994 during the initial proceedings 
below, and the County was given another opportunity to submit a remedial plan 
following our prior remand. However, in the nearly 18 months following the 
determination of the district court that the at-large electoral scheme was 
violative of s 2, the County has failed to propose any acceptable remedy. 
Moreover, the County does not represent to this court that an electoral plan 
could be formulated that would be acceptable to the County and that would 
remedy the violation. Rather, despite the fact that it has taken no steps 
toward developing such a plan during the five months since the district court 
ruled on remand, it requests that this court remand once again so that it may 
have yet an additional 90 days in which to attempt to do so. [FN2] Such a 
remand would inevitably delay the elections scheduled for November and is 
unwarranted in light of the County’s ample opportunities to advance an 
acceptable remedial plan and its failure to offer any indication that such a 
remand would produce an acceptable remedial plan. We therefore decline the 
County’s invitation.

**3 Plaintiffs assert that because all of the parties are in agreement that 
the cumulative voting scheme imposed by the district court is unacceptable and 
because none of the remedial plans offered by the County are adequate, we 
should instruct the district court to impose the single-member district plan 
they submitted on remand. Although this plan satisfied several of the County’s 
expressed legislative judgments—it guaranteed representation from throughout 
the County and provided African-American voters a fair and reasonable



opportunity to elect candidates of their choice—the County opposed the plan 
because it divided into different districts the residents of three 
municipalities—a result the County sought to avoid. Alternatively, Plaintiffs 
request that we instruct the district court to adopt their alternative plan, 
which adequately remedies the s 2 violation, guarantees representation from 
throughout the County, and is closer to satisfying all of the legislative goals 
expressed by the County because it divides the residents of only two 
municipalities into different districts. [FN3]

The district court concluded in January of 1994 that the scheme for electing 
members to the Worcester County Board of Commissioners diluted the votes of 
African-American voters in violation of s 2 of the Voting Rights Act. Despite 
the affirmance of that decision by this court nearly one year ago, the African- 
American voters of Worcester County still have not been provided with a remedy 
for the violation, and the Commissioners elected under the impermissible 
electoral scheme continue to hold over in office. We are loath to again post 
pone the long-awaited November general election [FN4] and are convinced that 
Plaintiffs’ alternative plan provides an adequate remedy for the s 2 violation 
and corresponds most closely to the legislative goals expressed by the County. 
Accordingly, we remand to the district court with instructions to direct 
immediate implementation of Plaintiffs’ alternative plan so that the general 
election scheduled for November 1995 may proceed as scheduled. The mandate 
shall issue forthwith.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED WITH 
INSTRUCTIONS

FN1. The first plan submitted by the County on remand was, with some 
modifications of district boundaries, essentially the same as the County’s 
original at-large scheme, and the district court properly rejected it as 
violative of s 2. The third plan submitted by the County was similar to the 
one described above (second plan), except that modifications of district 
boundaries resulted in African-Americans comprising only 33.6% of the 
voting age population in the district with the largest minority 
population; the district court rejected this plan on the same grounds that 
it rejected the County’s second proposed plan. On appeal, the County does 
not seriously contend that either of these plans is viable.

FN2. During oral argument in July 1994 in the first appeal, the County 
sought the opportunity to present the district court with a single-member 
district plan. The County certainly cannot assert that it had no reason to 
believe that it was appropriate to attempt to develop such a plan between 
September 16, when we remanded to the district court and thus afforded the 
County that opportunity, and October 12, when this court denied the 
petition for rehearing and suggestion for rehearing en banc.



FN3. Plaintiffs refer to the plan set forth on page 75 of the Joint 
Appendix submitted to this court in the first appeal as its alternative 
plan.

FN4. The deadline by which candidates must file to run is July 3, 1995.