Letter from Lani Guinier to David Lipman RE: Majority vote requirement

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

Richmond Division

DONALD MOON 
and ROBERT SMITH,

Plaintiffs,

No. 3:95 CV 942

M. BRUCE MEADOWS,

Defendant,

and

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

Defendant-Intervenors.

DEFENDANT-INTERVENORS’ BRIEF IN OPPOSITION 
TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Defendant-intervenors respectfully submit this Brief in opposition to plaintiffs’ motion 

for summary judgment. As discussed below, because genuine issues of material fact exist, 

plaintiffs’ motion should be denied.

I. INTRODUCTION

Through their motion for summary judgment, plaintiffs ask this Court to invalidate 

the Commonwealth’s congressional redistricting plan on the basis of selected newspaper



quotes,1 selected excerpts pulled from a voluminous legislative record, and expert testimony 

which has not been subjected to cross examination. "Federal court review of districting 

legislation represents a serious intrusion on the most vital of local functions." Miller v. 

Johnson. 132 L.Ed.2d 762, 779 (1995). The evidentiary difficulties inherent in assessing 

challenged congressional districting plans, "together with the sensitive nature of redistricting 

and the presumption of good faith that must be accorded legislative enactments, requires 

courts to exercise extraordinary caution in adjudicating claims that a state has drawn district 

lines on the basis of race." Id- Under these circumstances, summary judgment is not 

appropriate.

Summary judgment must be denied if there are genuine issues as to any material fact. 

Fed. R. Civ. P. 56(c). Under Miller, supra, plaintiffs must establish the absence of genuine 

issues of material fact with regard to all of the following questions: (1) whether race was the 

predominant factor in the enactment of Virginia’s congressional redistricting plan, and if so 

(2) whether the plan was justified by a compelling state interest, and (3) whether the plan is 

narrowly tailored to that interest.

An issue of material fact need not be resolved in the non-movant’s favor in order to 

defeat summary judgment. Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 248 (1986). 

"[A]ll that is required is that sufficient evidence supporting the claimed factual dispute be 

shown to require a jury or judge to resolve the parties’ differing versions of the truth at 

trial." Id- Conflicting inferences or interpretations of evidence must be decided in favor of

1 Plaintiffs’ newspaper evidence is inadmissible hearsay under Fed. R. Evid. 801 and
802.

2



the non-moving party. Adickes v. S.H. Kress. 398 U.S. 144, 158-159 (1970); see also 

United States v. Diebold Inc.. 369 U.S. 654, 655 (1962).

Defendant-Intervenors previously filed their Motion to Deny Plaintiffs’ Motion for 

Summary Judgment as Premature, or in the Alternative, Defer Consideration of Plaintiffs’ 

Motion for Summary Judgment Until Expert Discovery is Concluded along with an affidavit 

of counsel. Intervenors incorporate the arguments made in their memorandum in support of 

that motion for purposes of this response.

II. GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER RACE WAS 
THE PREDOMINANT FACTOR IN ENACTING VIRGINIA’S CONGRESSIONAL 
PLAN2

Under Miller. 132 L.Ed.2d at 779, 780, plaintiffs must prove that "race was the 

predominant factor motivating the legislature’s decision to place a significant number of 

voters within or without a particular district" and that the legislature subordinated "traditional 

districting principles" to "racial considerations."3 Plaintiffs cannot meet this threshold 

burden, however, as they have conceded the significant role of non-racial factors, particularly 

partisan politics, in Virginia’s congressional redistricting process. Plaintiff Robert Smith 

candidly stated

2 As an initial matter, plaintiffs have failed to establish, or even allege in their statement 
of facts, the requisite material facts to create standing, e.g.. that they are registered voters in 
Virginia’s Third Congressional District and that they have been harmed by the legislature’s 
enactment of the congressional plan. This failure alone is fatal to their motion.

3 Plaintiffs have failed to assert in their statement of undisputed facts that the 
consideration of race was the predominant factor in congressional redistricting, and that its 
use subordinated all other factors. Under Miller, this is a threshold showing they must 
make. Failure to establish the elements of their claim and failure to establish the absence of 
undisputed facts respecting it is fatal to summary judgment. Adickes v. S.H. Kress & Co.. 
398 U.S. 144, 160 (1970).

3



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.

April 19, 1996, Deposition of Robert Alexander Smith, pp. 84-85, Attachment 19. Mr. 

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.

A. The Legal Standard - The Mere Consideration of Race Does not Elevate 
Race to the Predominant Factor

As stated in Justice O’Connor’s concurring opinion in Miller, a state legislature’s

consideration of race during the redistricting process does not elevate race to the predominant

factor nor render a legislature’s redistricting plan constitutionally suspect. Miller, supra. 132

L.Ed.2d at 790. To the contrary, the Miller standard is "a demanding one" which

does not 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.

4



Id.4 Indeed, in Shaw the Court acknowledged that redistricting plans are always drawn with 

an awareness of race, id. at 532, and expressly refused to hold that "the intentional creation 

of majority-minority districts, without more, always gives rise to an equal protection claim." 

Id. at 530. The Court’s legal standard "does not treat efforts to create majority-minority 

districts less favorably than similar efforts on behalf of other groups." Miller, supra. 132 L. 

Ed. 2d at 790 (O’Connor, J., concurring) (emphasis in original). Thus, Shaw and Miller 

make clear that the intentional creation of congressional districts with majority black 

populations does not automatically subject a redistricting plan to strict scrutiny. This 

principle is strengthened by the Court’s summary affirmance, on the same day it decided 

Miller, in DeWitt v. Wilson. 115 S. Ct. 2637 (1995), affirming 856 F. Supp. 1409 (E.D. 

Cal. 1994), upholding California’s redistricting plans against a Shaw-based challenge.5

Despite the deliberate creation of majority minority districts, the three judge court 

found strict scrutiny was not required in DeWitt because the masters "sought to balance the 

many traditional redistricting principles, including the requirements of the Voting Rights

4 See also Shaw v. Reno. 125 L.Ed.2d 511, 528 (1993) (decision limited to "exceptional 
cases" where a redistricting plan "rationally can be viewed only as an effort to segregate the 
races for purposes of voting, without regard for traditional districting principles and without 
sufficiently compelling justification.").

5 The California court found that the plans were drawn "to maximize the actual and 
potential voting strength of all geographically compact minority groups of significant voting 
population." Wilson v. Eu. 4 Cal.Rptr.2d 379, 393 (1992). According to the court, the 
special masters who drew the plans gave "federal Voting Rights Act requirements . . .  the 
highest possible consideration," jd  ̂at 397, and chose to "draw boundaries that will withstand 
Section 2 challenges under any foreseeable combination of factual circumstances and legal 
rulings." Id. at 399.

5



Act." DeWitt v. Wilson, supra. 856 F. Supp. at 1413. The DeWitt court found that the

deliberate effort by the California special masters to create majority minority districts,

evidences 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.

Id. at 1413-14. As the summary affirmance in DeWitt shows, there is no basis for the

claim that a legislature’s consideration of race to avoid a potential Section 2 violation is

constitutionally suspect or prohibited in light of Miller.

B. Intent is not Properly Decided on Summary Judgment

"[I]n assessing the sufficiency of a challenge to a districting plan, [courts] must be

sensitive to the complex interplay of forces that enter a legislature’s redistricting calculus."

Miller, supra. 132 L. Ed. 2d at 779. To decipher the role and predominance of any of these

competing factors, this Court must assess the legislature’s intent during three successive

legislative sessions which resulted in the plan challenged by plaintiffs here. That intent is

determinable only through the type of weighing and evaluating of facts essentially impossible

on summary judgment, particularly in the premature posture of plaintiffs’ motion. See e.g..

Wright, Miller & Kane, Federal Practice and Procedure. § 2732.2, at pp. 341-42;

Hutchinson v. Proxmire. 443 U.S. 111 (1979) (an issue involving a defendant’s state of mind

"does not readily lend itself to summary disposition"); see also Liberty Lobby, supra. 477

U.S. at 249 ("at the summary judgment stage the judge’s function is not himself to weigh the

evidence and determine the truth of the matter but to determine whether there is a genuine

issue for trial.").

6



Given the fact-intensive inquiry implicit in plaintiffs’ intent claim, it is not surprising 

that not a single federal court evaluating a congressional redistricting plan enacted by a state 

legislature in light of Shaw and Miller has decided the case or the intent of the legislature on 

summary judgment. Miller expressly recognized the danger of adjudicating such claims prior 

to a trial on the merits.

[Cjourts must also recognize . . .  the intrusive potential of judicial intervention 
into the legislative realm, when assessing under the Federal Rules of Civil 
Procedure the adequacy of a plaintiffs showing at the various stages of 
litigation and determining whether to permit discovery or trial to proceed.

132 L. Ed. 2d at 780. The extraordinary caution urged by the Supreme Court in Shaw and

Miller-tvpe cases strongly counsels against granting plaintiffs’ motion for summary judgment.

C. Constitutionally Permissible Factors Predominated in the
Legislative Process Which Resulted in the Enactment of the Congressional 
Redistricting Plan

Under Miller. Virginia’s congressional redistricting plan is presumed constitutional, 

jd. at 779, and members of the General Assembly are entitled to the presumption that they 

obeyed the law and did not consider race in an impermissible manner.

The redistricting process involved all 140 members of the General Assembly, 

numerous public hearings, committee meetings, and floor debates over the course of three 

legislative sessions. In contrast to the complexity of the actual legislative redistricting 

process, plaintiffs present this Court with only a small fraction of that large picture.

However, when viewed as a whole, the legislative record indicates that the General 

Assembly in developing the current redistricting plan followed traditional redistricting 

principles, and that the most traditional of all of those principles, partisan politics,

7



predominated. All of these principles worked together in a synergistic fashion to create the 

shape of the congressional districts about which plaintiffs now complain.6

1. Partisan Politics Was the Predominant Factor Affecting District Shape

As even the plaintiffs concede, in Virginia congressional redistricting as a means of

obtaining partisan political advantage is standard operating procedure. As Delegate Phillip

Hamilton succinctly stated "Redistricting is a political process, and political partisanship will

always rule the day regardless of the political party in power." November 13, 1991 Public

Hearing, p. 18, Attachment 17. There was much testimony in the legislative record that the

shapes of districts resulted from the majority political party using its political strength to

draw a plan to its advantage. Indeed, the members of the General Assembly heard

complaints during public testimony about the overtness of the partisan political nature of the

redistricting process. For example, Gloria T. Fisher testified, quoting from a newspaper

editorial referencing the state legislative reapportionment process,

Democrats in Richmond tried to redistrict the GOP out of existence last 
spring, but voters came back and gave the Democrats the thumping they richly 
deserved. After the redistricting shenanigans, Democrats deserve every 
agonizing moment to come.

November 7, 1991 Public Hearing, p. 18, Attachment 15.7 This evidence indicates the

6 There is undisputed evidence that a number of factors shaped the plan. To determine 
that one predominated is essentially a weighing of evidence that must be left for the trier of 
fact after a trial on the merits. Through their motion plaintiffs are in reality asking this 
Court to infer from other facts and circumstances that race predominated. Such inferences 
are to be drawn in the non-movants’ favor. Adickes v. S.H. Kress & Co.. 398 U.S. 144, 
158-59 (1970).

7 Other examples of the partisan considerations motivating the Virginia Legislature 
include the following: Daniel Carrell testified that "[t]he proposed district would hurt the 
political enterprise. They treat voters not as constituents with concerns, opinions, and needs,

8



predominant impact of partisan politics in the design of Virginia’s congressional 

reapportionment plan.

2. The One Person - One Vote Requirement Affected District Shape 
and Required Split Jurisdictions

The first redistricting factor mentioned during the legislative process was the need to 

comply almost perfectly with the Fourteenth Amendment’s one person - one vote guarantee. 

Mary Spain, Division of Legislative Services, testified that the legislature had to produce a 

congressional redistricting plan with a very low overall interdistrict population deviation. 

"The effect of this type of deviation requirement or absolute quality [sic] requirement will 

push towards more split localities." October 11, 1991, Public Hearing, pp. 7-9, Attachment 

14. Delegate Croshaw noted:

Federal courts ruled in congressional redistricting there can’t be variation in 
population numbers essentially, and at a very minuscule level there is a 
presumption that the deviation is too wide, so therefore when you are doing 
congressional redistricting, even more so than legislative redistricting where 
there are more seats, there are bound to be divisions in communities because 
mathematical precision is required, and that’s by federal courts and the federal 
Justice Department.

but as nameless numbers to be exploited for crass partisan ends." November 13, 1991, 
Public Hearing, p. 50, Attachment 17; Tony Dominquez testified that the congressional 
district plan, excuse me, working draft released on November 8th, it is political retribution, 
and grossly unfair. . . Furthermore, it seems to be the priority of this committee to 
perpetuate incumbency and the placement of partisanship over statesmanship. Id. at 54; and 
in testimony cited by plaintiffs, Delegate Ray Guest stated ”[T]he problem is that the people 
will be stuck with what is finally enacted for the next ten years unless the court somehow or 
another decides that perhaps they would want to intervene in what is taken to be a partisan 
political game." Id- at 90.

9



November 13, 1991 Public Hearing, p. 94, Attachment 17 (emphasis added). Plaintiffs’ own

evidence indicates that the stringency of the one person - one vote requirement had a very

large impact on the shape of Virginia’s congressional districts.

A rarely mentioned factor that probably contributed significantly to the many 
bizarre shapes of the 103rd Congress districts is the impact of the Supreme 
Court’s one person, one vote rules. . . . [The minuscule population differences 
in the districts] are unprecedented, and they have undoubtedly contributed to 
curious district boundaries as the line-drawers have fine-tuned their districts to 
achieve zero population deviations pursuant to Supreme Court rulings.

See Plaintiffs’ Appendix E.

Under the 1990 Census, the congressional district plan drawn in the 1980s had a total 

plan deviation between districts of nearly 40%. "Drawing The Line," January, 1991 

attached to October 11, 1991 Public Hearing, Attachment 14. This excessive deviation as 

well as Virginia’s gain of an eleventh congressional seat required a redrawing of the district 

lines and the alteration of all existing congressional districts. Districts 1, 2, 3, and 4 under 

the 1980s plan all had increased populations which raised their deviations to an unacceptable 

level, each requiring redrawing. ]d-8 Parts of these four districts which were all too large 

were used to drawn the new Third. The evidence indicates that adherence to the 

constitution’s minimal deviation requirement affected district shape.

Split jurisdictions are not a new phenomenon in Virginia redistricting. For example, 

Marv Hrbus from Prince William County testified that"[f]or the past ten years we’ve had a 

split county." November 7, 1991 Public Hearing at p. 25-26, Attachment 15. Marilyn

8 The deviations of Districts 1 through 4 were as follows: District 1, 9.35%; District 2, 
16.32%, District 3, 10.59%; and District 4, 2.79%. "Drawing The Line," January, 1991 
attached to October 11, 1991 Public Hearing, Attachment 14.

10



Boren testified that "in Fairfax County we are accustomed to Magisterial Districts having to 

be split." Id- at 29.9

In none of the materials submitted by plaintiffs in support of their motion for 

summary judgments is there any indication that the division of counties, cities, or precincts 

was motivated predominately by race.

3. "Maximizing" Military Base Representation in Congress Affected 
District Shape

In its deliberations, the General Assembly showed a substantial concern with keeping 

Virginia’s military installations, all of which are located in a small geographic area, in 

separate congressional districts so as to ensure the maximum number of members of congress 

advocating on behalf of these interests. See October 11, 1991 Public Hearing, pp. 44, 58, 

Attachment 14; November 13, 1991 Public Hearing, pp. 27-28, Attachment 17. This 

priority manifested itself in hostility towards and rejection of plans which grouped these 

military installations into fewer than three separate districts. Delegate Cooper summed up 

the legislature’s concern this way:

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 shipyard’s perhaps, or NASA 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.

November 13, 1991 Public Hearing, pp. 39-40, Attachment 17.

9 Changes in local precinct lines after the 1990 census contributed to split precincts in the 
congressional plan. November 8, 1991 Public Hearing, p. 8, Attachment 16.

11



4. The Legislature Properly Considered Compliance with the Voting 
Rights Act During its Redistricting Process

Sections 2 and 5 of the Voting Rights Act prohibited the legislature from 

discriminating on the basis of race, either by intent or result, in the formulation of its 

congressional redistricting plan. See Section III, infra. Thus, like the Court in DeWitt. 

supra, the legislature properly considered Voting Rights Act compliance as one of the many 

factors to be weighed in its redistricting calculus. While race was considered, it was not, as 

discussed above, considered to the exclusion of all other customary and traditional 

redistricting criteria.

5. The Consideration of Race Was Not the Predominant Reason for 
the Shapes of Virginia’s Congressional Districts

Plaintiffs complain about the shape and compactness of the districts in the 

congressional plan. However, the legislative record reflects that oddly shaped districts are 

nothing new for Virginia. George Rawlings testified that "it’s nothing new to have strange 

congressional districts." October 11, 1991 Public Hearing, p. 33, Attachment 14.

Consistent with their selective presentation of information, plaintiffs rely on excerpts 

from a report by the Congressional Research Service to argue that the Third District is not 

compact based on mathematical scores.10 As indicated elsewhere in this report, many 

demographers and political scientists consider these particular quantitative measures to be 

inappropriate and unreliable. No court has recognized that such an inflexible method of

10 While an expert may rely on the report, the report itself is inadmissible under Fed. R. 
Evid. 803(18).

12



analysis is an appropriate standard for evaluating compactness. The report acknowledges the

limited utility of the scores to the intent determination this Court must make, stating

[i]t is not possible to determine causality using the scoring systems described 
in the report. Minority districts with low compactness scores may have been 
created because there no other alternatives to the districters, but other 
traditionally important districting factors (such as partisan advantage and 
incumbent protection) may have caused the minority districts to receive lower 
scores than would otherwise have been necessary.

Plaintiffs’ Attachment E .'1

If compactness and contiguity were sacrificed, as plaintiffs allege, it was not because 

race was the predominant factor or because it was the only way a congressional district with 

a majority black population could be crafted. Every plan considered on the foor 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 black. See 1991 Section 5 Submission, Attachment 15, Legislative History of 

1991 Virginia Congressional Redistricting & Table List of Congressional District Plans, 

Attachment 20. The majority black districts included in these plans assumed different shapes 

and sizes, depending on the other criteria emphasized by their authors. Reacting to the 

configuration of the Third District in the working plan, then-state senator Scott noted that 

other configurations could satisfy the Voting Rights Act, and stated "the ACLU, the NAACP 

and others have shown configurations that are much more compact." November 13, 1991 

Public Hearing, p. 104, Attachment 17. It was not the lack of compact alternatives which 11

11 The part of the report submitted by plaintiffs states, "The compactness rating systems 
described in this report are not a panacea for districters. They disagree among themselves in 
how they score districts, and they do not adequately accommodate themselves to unique 
geographical and political features." Plaintiffs’ Appendix E.

13



led to the present Third, rather it was the legislature’s interest in accomplishing a myriad of 

goals through its legislation.

Similarly, race was not the reason for split precincts in the plan. Alternatives were 

presented which did not split precincts. For example, the ACLU plan was built at the 

"precinct level," meaning it contained no split precincts. October 11, 1991 Public Hearing, 

p. 52, Attachment 14. However, the legislature decided to adopt a plan that split precincts. 

Alternatives were presented which included whole counties, see e.g.. October 11, 1991 

Public Hearing, p. 52 and attached plan, Attachment 14, however these alternatives were not 

chosen.12

6. Plaintiffs Provide no Credible Evidence of the Application of a 
"Maximization Policy" by the Department of Justice

Plaintiffs attempt to compare the legislative process that resulted in Georgia’s 

Eleventh Congressional District being declared unconstitutional in Miller with Virginia’s 

redistricting process. But the factual circumstances of the two cases are quite different.

12 Citizens also testified about Virginia’s tradition of combining communities with 
diverse population into congressional districts. For example, Grace Keen, testified positively 
about the diverse nature of the prior Fourth District stating: "

In Isle of Wight we have a combination of rural and urban areas linked by 
growing suburbs. We have farmers, defense contractors and federal workers."
Keen then pointed out that Cong. Sisisky has represented this diverse district 
well with his blend of old and young, employers, laborers, farmers, teachers, 
men, women, blacks and whites. His three constituent service offices in 
Emporia, Petersburg, and Portsmouth is just one way he’s reached out to all 
segments of the district. . . . "  Keen added: "The citizens of the 4th District, 
despite professional and cultural differences, share common goals and values.
We all want solutions to the problems facing our communities and we all want 
our representatives to be responsive to our concerns." October 11, 1991 Public 
Hearing, p. 48-50, Attachment 14.

14



In Miller, the Department of Justice interposed objections under the Voting Rights 

Act to two plans that each created two majority black congressional districts in Georgia.

Only when the State of Georgia developed and submitted a plan with three majority-minority 

districts did the Department of Justice grant Section 5 preclearance. The Court stated that "it 

would appear the Government was driven by its policy of maximizing majority-black 

districts." 132 L. Ed.2d at 789. By contrast, Virginia’s redistricting process involved no 

such interplay with the Department of Justice. Indeed, in Virginia, despite the fact that there 

were redistricting proposals which included two majority black districts, Virginia adopted a 

plan with only one and the Department of Justice precleared it.

To be sure, Virginia state officials considered race as one factor in its redistricting 

process. And it referred to redistricting and vote dilution case law in order to gauge the 

legality of its plan. Thus, Virginia officials properly considered voting rights case law that 

discussed the use of racial percentages in designing remedial majority-minority districts, such 

as Ketchum v. Byrne. 740 F.2d 1398 (7th Cir. 1984), cert, denied. 471 U.S. 1135 (1985) 

(discussing guideline of 65% of total population or 60% of voting age population).13 

These guidelines have been in use by courts for redistricting purposes for years and were 

appropriately considered by the Virginia legislature. As evidenced by the Attorney General’s 

preclearance of the state legislative plans which include minority districts under 60% 

population, see District Population Analysis for Plan H0881750, Attachment 9; District

13 Such cases make clear that in designing districts that will meet the requirements of the 
Voting Rights Act, it is proper to take into account the generally lower registration and 
turnout rates of minority voters.

15



Population Analysis for Plan S0882750, Attachment 10, Virginia did not apply such 

guidelines inflexibly.

In their efforts to turn this case into a Miller v. Johnson-tvpe case, plaintiffs suggest 

that "the DOJ operated through intermediaries, the ACLU." Plaintiffs’ Memorandum, p. 15. 

This argument not only strains credulity, but it reveals the weakness of plaintiffs’ case. There 

is simply no evidence, that the Department of Justice’s decision to approve (preclear) 

Virginia’s congressional plan had any connection whatsoever to the ACLU.14 Further, the 

legislative record explicitly indicates that the ACLU did not prevail upon the Attorney 

General to maximize black voting strength in Virginia. November 13, 1991 Public Hearing, 

p. 68, Attachment 17.15

14 Plaintiffs improperly refer to the intervenors as the "ACLU Defendant-Intervenors." 
Plaintiffs’ Memorandum, p. 16. The ACLU is not a party to this action, but merely is 
among several organizations, including the NAACP Legal Defense Fund, which have 
provided counsel to the intervenors who are defending the constitutionality of the 
congressional districts under challenge. Plaintiffs apparently use this label to describe the 
intervenors in order to bolster their otherwise unsupported assertion that the ACLU drove 
Virginia to a maximization policy. The facts, however, do not support such a contention. In 
any event, the label is inaccurate, as it would likewise be for the defendants to refer to the 
plaintiffs here as the Katsurinas plaintiffs, simply because they have retained Mr. Katsurinas 
as their counsel and he has represented plaintiffs in other cases seeking to dismantle majority 
minority districts.

Plaintiffs also suggest that it is inappropriate for minority citizens and their advocates 
to petition their government to develop racially fair redistricting plans. We submit that is 
precisely how participatory democracy is supposed to work. Plaintiffs’ suggestion has an 
especially hollow ring here since the named plaintiffs in this case opted not to participate in 
any of the public hearings which led up to the congressional redistricting plan about which 
they now complain. Smith Deposition, p. 40-41, Attachment 19; Moon Deposition, p. 38- 
39, Attachment 18.

15 In an effort to create a link to the facts in Miller, plaintiffs cite the testimony of 
Delegate Watkins for the proposition that he had spoken directly with a Department of 
Justice representative. Plaintiffs’ Memorandum at 15. A review of Watkins’ testimony, 
however, shows he merely "inquired...with some people who have dealt with the Justice

16



To create a link between the ACLU of Virginia and the Department of Justice, so as

to make this case resemble Miller v. Johnson, plaintiffs point out that one of defendant- 

intervenors’ counsel (Mr. Hebert) was once employed at the Justice Department and another 

(Mr. Pershing) will soon be employed there. That hardly establishes a connection between 

DOJ and the ACLU that is remotely connected to Virginia’s redistricting process. 

Furthermore, although the Commonwealth directed its 1992 submission letter to Mr. Hebert 

when it applied for preclearance of its congressional redistricting plan, the facts show Mr. 

Hebert had no involvement in the review of Virginia’s congressional redistricting plan. See 

April 3, 1996 letter from Dennis J. Dimsey to J. Gerald Hebert, Attachment 21. Likewise, 

Mr. Pershing’s upcoming employment with the Department of Justice, years after the review 

and preclearance of Virginia’s congressional plan, has no relevance to this action.

III. GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER THE
THIRD CONGRESSIONAL DISTRICT SATISFIES STRICT SCRUTINY

Even if this Court determines that plaintiffs have demonstrated that race was the 

predominant factor in the congressional reapportionment plan, plaintiffs are not entitled to 

summary judgment unless they prove that the plan lacked "sufficiently compelling 

justification." Shaw, supra. 113 S.Ct. at 2832. In Shaw, supra. 113 S.Ct. at 2839, the 

Supreme Court recognized that "[t]he States certainly have a very strong interest in 

complying with federal antidiscrimination laws that are constitutionally valid as interpreted 

and as applied." See also Miller. 132 L.Ed.2d at 782. The Shaw and Miller decisions 

confirm that a race-conscious

Department." Plaintiffs’ Appendix I, p. 119.

17



redistricting plan can be justified by the "significant state interest in eradicating the effects of 

past racial discrimination." Miller. 132 L.Ed.2d at 782, citing Shaw, supra. 125 L.Ed.2d at 

511.16

The record shows simply that the Virginia Legislature was aware of its duty to 

comply with the Voting Rights Act in the development of a congressional districting plan and 

it endeavored to do so. See e.g.. October 11, 1991 Public Hearing, p. 9, Attachment 14. 

This consideration of race to overcome the effects of past discrimination and to comply with 

the requirements of the Voting Rights Act was reasonable and appropriate.

A. Virginia’s Third Congressional District is Justified by the Compelling 
Interest in Complying with Section 2 of the Voting Rights Act

In assessing whether a state redistricting plan complies with Section 2, a court must 

determine if the plan "results in a denial or abridgement of the right . . .  to vote on account 

of race or color," 42 U.S.C. § 1973(a), i.e.. whether minority voters "have less opportunity 

than other members of the electorate to participate in the political process and to elect 

representatives of their choice." Section 2(b), 42 U.S.C. § 1973(b).

The legislative history of Section 2, particularly the Senate Report, indicates that "a 

variety of factors, depending upon the kind of rule, practice, or procedure called into 

question," are relevant in determining if a plan "results" in discrimination. Senate Report at 

28.17 The analysis of the Senate Report was approved and applied by the Supreme Court in

16 See also 115 S.Ct. at 2500 (Ginsburg, J. dissenting)(noting that one of the "points on 
which the Court does not divide," is that "to meet statutory requirements, state legislatures 
must sometimes consider race as a factor highly relevant to the drawing of district lines").

17 Reprinted in 1982 U.S. Code Cong. & Admin. News 206-07. These factors are also 
quoted in full in Thornburg v, Gingles. 478 U.S. 30, 36-37 (1986).

18



Thornburg v. Gingles. 478 U.S. 30 (1986). Gingles. however, essentially streamlined the 

analysis by defining three of the criteria as the most important. Those criteria are: (1) 

whether the minority group is "sufficiently large and geographically compact to constitute a 

majority in a single-member district"; (2) whether the minority group is "politically 

cohesive," fe^, tends to vote together; and (3) whether the white majority votes as a bloc 

"usually to defeat the minority’s preferred candidate." Gingles. supra. 478 U.S. at 50-51.

In Johnson v. De Grandv. 114 S.Ct. 2647, 2657 (1994), the Supreme Court’s most recent 

Section 2 decision, the Court reinforced the traditional view that the creation of majority- 

minority districts is the proper remedy when racially polarized voting systematically prevents 

minority voters from electing candidates of their choice to office in majority white election 

districts. Justice O’Connor, who authored the opinion in Shaw and concurred in Miller, 

observed that "proportionality—defined as the relationship between the number of majority- 

minority districts and the minority groups’ share of the relevant population—is always 

relevant evidence in determining vote dilution , but is never itself dispositive. Lack of 

proportionality is probative evidence of vote dilution." 114 S. Ct. at 2664 (concurring 

opinion of O’Connor, J.)(emphasis in original).

1. African Americans in Virginia are Sufficiently Numerous and 
Geographically Compact

As discussed in Section II.C.5, supra, every congressional redistricting plan 

considered by the General Assembly included at least one district in which a majority of the 

population was African American. This fact alone strongly suggests that it was generally 

accepted that African Americans were sufficiently numerous and compact to constitute a

19



majority in a single-member district.18 Even if it could be shown that other plans presented 

to the Virginia Legislature contained a majority black district more geographically compact 

than the one ultimately adopted in the current plan, that is immaterial to the need for Section 

2 compliance.

Gingles does not demand compactness in the shape of a district in any absolute sense. 

An evaluation of compactness should include considerations of effective representation. 

Dillard v. Baldwin County Bd. of Educ.. 686 F.Supp. 1459, 1465-66 (M.D.Ala. 1988); see 

also DeWitt. supra. 856 F.Supp. at 1413. In Marylanders For Fair Representation v. 

Schaefer. 849 F.Supp. 1022 (D.Md. 1994), the court held, after Shaw, that a proposed 

district connecting two "pockets of dense black population" with a rural corridor met the 

Gingles precondition, especially because districts in the state’s own plan covered greater 

distances. Neither Section 2 nor the Constitution demands a higher standard of compactness 

for majority-minority districts than for other districts. See Miller, supra. 115 S.Ct. at 2497 

(O’Connor, J., concurring).19

18 Since the congressional district plan spans the entire Commonwealth of Virginia, the 
Commonwealth is the relevant jurisdiction for the Section 2 analysis. Hence, the relevant 
issue is
whether African Americans in Virginia are sufficiently numerous and compact to constitute a 
majority in a single-member district. Both plaintiffs and their expert misstate the relevant 
jurisdiction, suggesting that the Gingles factors must be established only "with respect to the 
District," Plaintiffs’ Memorandum, p. 18, or "the southeastern part of Virginia."
Weber Affidavit, ^38.

19 Certainly the legislature must be free to adopt a less compact district in order to 
accommodate other considerations such as those described in Section II.C, supra. Miller 
does not require that avoidance of minority vote dilution be the last factor considered in 
redistricting, to be allowed if it can be accommodated only after all other interests have been 
protected.

20



2. Voting in Virginia is Racially Polarized

Plaintiffs concede the presence of the second Gingles factor, i.e.. that African 

Americans in Virginia are politically cohesive. Plaintiffs’ Memorandum, p. 18.

Plaintiffs provide no racial bloc voting analysis, yet they contend that the third 

Gingles factor, i.e.. white voters vote as a bloc usually to defeat the candidates of choice of 

African American voters, is not present in Virginia elections. Plaintiffs’ rely on the election 

of two African-American individuals as well as several white candidates.20 However, the 

election of two black candidates is not sufficient to prove the absence of white bloc voting.

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. at 76. Accord Jenkins v. Red Clay 

Consolidated School District Board of Education. 4 F.3d 1103, 1123 (3rd Cir. 1993) (the 

election of a single black "would not be sufficient to alter an otherwise supportable 

conclusion that white voters vote sufficiently as a bloc usually to defeat the minority- 

preferred candidate"). Only sustained electoral success by black candidates resulting in 

proportional representation would be sufficient to rebut a vote dilution claim. Gingles. 

supra. 478 U.S. at 78. However, plaintiffs have not alleged, nor could they, that African 

American candidates in Virginia have enjoyed such a high degree of success.

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

20 In Gingles. in analyzing the issue of racially polarized voting, the Court relied only 
on elections involving interracial contests. 478 U.S. 58-61, 74-77.

21



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, Attachment 23. The Commission reported a 

total of 124 black elected officials in Virginia (federal, county and municipal offices), the 

lowest number in any state covered by Section 5. Id- at p. 12, Table 2.1.21

The continuing tie between race and election outcomes, and the unwillingness of 

white voters, in general, to vote for minority candidates is amply demonstrated by the 

underrepresentation of blacks in the legislature and their election solely or primarily from 

majority black districts. Of the current 100 members of the House of Delegates, 91 are 

white and nine are African-American.22 See Virginia State Legislative Guide, pp. 6-9, 

Attachment 8. All nine African-American delegates are elected from districts with 57% or 

more black total population. Id; District Population Analysis for PlanH0881750, Attachment 

9. Currently, there are three white delegates elected from districts with 55% or more black 

total population.23 By contrast, there are currently no African-American delegates elected 

from majority white districts. See Virginia State Legislative Guide, pp. 6-9, Attachment 8;

21 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. 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. Virginia Statistical Abstract, pp. 278,
285, Attachment 24.

22 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. See Virginia State Legislative Guide, pp. 6-9,
Attachment 8.

23 The delegates and their districts are as follows: DeBoer - 63; Hall - 69; Councill - 75. 
See Virginia State Legislative Guide, pp. 6-9, Attachment 8; District Population Analysis for 
PlanH0881750, Attachment 9.

22



District Population Analysis for PlanH0881750, Attachment 9. Similarly, of the current 40 

members of the Senate, 35 are white and five are African-American.24 All five African- 

American senators are elected from districts with 56% or more black total population. See 

Virginia State Legislative Guide, pp. 2-3, Attachment 8; District Population Analysis for 

Plan S0882750, Attachment 10.

Plaintiffs’ assertion that legally significant white bloc voting does not exist is also 

rebutted by federal court 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).25

3. Other Section 2 Factors

a. History of Race Discrimination, Including Voting Rights Act 
Violations

24 The African-American senators and their districts are as follows: Maxwell - 2; Y. B. 
Miller - 5; Lambert - 9; Marsh - 16; Lucas - 18. See Virginia State Legislative Guide, pp. 
2-3, Attachment 8.

25 In addition, the City of Newport News stipulated that plaintiffs could establish a prima 
facie showing of white bloc voting. 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, Attachment 1.

23



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

discrimination against African Americans, which directly touched the right to vote.26

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). 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). "[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. Prior to 1966, Virginia maintained a poll tax which federal 

courts found was expressly intended to disfranchise black voters. See Flarper v. Virginia 

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

(1965). 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), affd sub norm Tancil v. Woolls. 379 U.S. 19 (1964).

26 Federal courts have found a history of official discrimination on the basis of race in 
the following Virginia jurisdictions in Section 2 cases: (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). In Peeram 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. Slip op. at pp. 4-5, Attachment 1.

24



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). Interracial marriage was a felony prohibited by Virginia’s 

anti-miscegenation law until 1967. See Loving v, Virginia. 388 U.S. 1,4 (1967). 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), aff'd 420 U.S. 901 (1975).

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

jurisdictions, including some within the boundaries of the Third District:27 (1) City of 

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), Attachment 1; (2) 

Lancaster County - Taylor v. Forrester. Civil Action No. 89-00777-R (E.D.Va. May 17, 

1990), 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 - Neal v. 

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

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), Attachment 2; (2) Lunenberg County - Watkins v. 
Thomas. Civil Action No. 87-0709-R (E.D.Va. May 20, 1988), Attachment 3; (3) City of 
Emporia - Person v. Ligon. Civil Action No. 84-0270-R (E.D.Va. January 12, 1988) 
Attachment 4; (4) Town of South Hill - Feggins v. Horne. Civil Action No. CA-88-0865-R 
(E.D.Va. June 19, 1989) 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), Attachment 6; (6) Mecklenburg County - King v. Blalock. 
Civil Action No. CA-88-0811-R (E.D.Va. June 6, 1989), Attachment 7; (7) Lancaster 
County - Taylor v, Forrester. Civil Action No. 89-00777-R (E.D.Va. May 17, 1990); 
Attachment 13.

25



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

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

(E.D.Va. 1988).28

b. Continuing Effects of Racial Discrimination

In 1996, Virginians still tend to live in segregated neighborhoods and participate in 

racially segregated institutions. Nearly 60% of blacks live in majority-black census blocks 

and nearly 25% live in census blocks which are over 90% black. Declaration of William S 

Cooper, 11i8-9, Attachment 22. Similarly, over 70% of the non-black population resides in 

census blocks that are over 90% non-black and over one third of the non-black population 

lives in census blocks in which there are no African American residents. Id- at 19.29

To this day, black Virginians suffer from the continuing effects of the 

Commonwealth’s legacy of race discrimination. The 1990 Census demonstrates that there 

are sharp disparities between Virginia’s African Americans and whites in their socio­

28 The federal court found a Section 5 violation in the City of Petersburg. City of 
Petersburg v. United States, supra 354 F.Supp. at 1028.

29 Plaintiff Robert Smith testified to the persistence of residential segregation. Mr.
Smith lives in the same house in which he lived as a child. Smith Deposition, p. 15, 
Attachment 19. 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. 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. Moon Deposition, p. 13, Attachment 18. Both 
plaintiffs testified that they attend racially segregated churches. Id., p. 18; Smith Deposition, 
p. 17-18, Attachment 19. Mr. Smith also 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. Smith Deposition, p. 96, Attachment 19. When 
asked the basis of that refusal, Mr. Smith forthrightly responded "Racism." Id-

26



economic condition. As of 1989, per capita income for whites is $17,361; per capita income 

for African Americans is $9,439. Declaration of William Cooper, 114, Attachment 22. As 

of 1989, 7.38% of white persons (342,970) have income below poverty level, compared to 

22.36% of African Americans (245,972). Id-, 115 . As of 1989, the majority (67.4% or 

1,240,526) of white households have income of $25,000 or more; the majority of African 

American households (55.54% or 217,302) have income of $25,000 or less. Id., 126. Of 

3,686,493 white persons 16 years and over, 88,186 (3.51%) are unemployed; of 821,883 

African American persons 16 years and over, 47,863 (8.93%) are unemployed. Id, 132. Of 

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

college education or more; of 676,995 African American persons 25 years and over, a 

majority (67.4% or 456,293) have a high school diploma or less. Id, 135. Of 1,841,346 

housing units occupied by white householders, 1,296,422 (70.41%) are owner occupied and 

544,924 (29.59%) are renter occupied; of 389,928 housing units occupied by African 

American householders, 191,749 (49.18%) are owner occupied and 198,179 (50.82%) are 

renter occupied. Id-, 140. Of 1,841,346 white occupied housing units, 112,359 (6.10%) 

have no vehicle available; of 389,928 African-American occupied housing units, 88,454 

(22.68%) have no vehicle available. Id., 1 41.30

30 Diminished health status is another continuing effect of race discrimination. On 
average whites live five to six years longer than blacks. 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. Virginia Department of Health, Center for Health Statistics, Virginia Vital 
Statistics Annual Report 1994, p. 31, Attachment 12. The rate of infant deaths per 1,000 
live births for African-Americans is more than twice that for whites. 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. The percentage of 
low birth weight babies for African Americans is more than twice that for whites. In 1994,

27



B. Virginia’s Third Congressional District is Justified by the
Compelling Interest in Complying with Section 5 of the Voting 
Rights Act31

Plaintiffs contend that a failure by the legislature to create a majority black district 

would not have been objectionable under Section 5 and hence compliance with Section 5 

cannot constitute a compelling interest. Plaintiffs’ theory is flawed because it is premised on 

the notion that since there has never previously been a majority black congressional district 

in Virginia, there never has to be one. Indeed, under plaintiffs’ theory, even if Virginia 

were allotted 30 congressional districts, the failure to create even one majority black district 

would not violate Section 5. Plaintiffs are incorrect when they argue that zero black districts 

out of 11 leaves blacks no "worse off" than zero black districts out of 10. Blacks are worse 

off under plaintiffs’ theory which automatically entitles the white majority to control any and 

all new districts created. Given the increase in the number of congressional seats allotted 

to Virginia, combined with a substantial minority population, as well as the total absence of 

blacks in the Virginia congressional delegation since Reconstruction, a plan without a 

majority black district may have been objectionable under Section 5. The legislature 

appropriately decided not to risk non-compliance with Section 5. Even more evident, 

however, is that a failure by the legislature to create a majority black district in the face of

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.

31 Plaintiffs argue that the Commonwealth’s Section 5 submission must contain all 
reasons for the redistricting plan. That argument is simply unfounded. The Attorney 
General has only limited jurisdiction under Section 5. Hence, submitting jurisdictions would 
reasonably only submit
materials relevant to the Attorney’s General limited review, not a laundry list of factors 
dealing with issues beyond the Attorney General’s jurisdiction.

28



these facts, as well as a history of discrimination and racial bloc voting, would have been 

strong evidence of intentional dilution of minority voting strength in violation of both 

Sections 2 and 5.

IV. Genuine Issues of Material Fact Exist as to Whether Virginia’s Third
Congressional District is Narrowly Tailored

In Shaw, the Supreme Court held that a redistricting plan is not narrowly tailored if it 

goes "beyond what [is] reasonably necessary" to achieve the State’s compelling interest. The 

Court did not fully elaborate, however, on the meaning of that standard. In other strict 

scrutiny contexts, courts have considered a number of factors to be important in determining 

w'hether a remedial racial classification is narrowly tailored to serve its purpose. These 

include: 1) the efficacy of alternative race-neutral measures; 2) the efficacy of alternative, 

more narrowly tailored racial classifications; 3) the flexibility and duration of the remedy;32 

and 4) the impact of the remedy on third parties.33 See e.g.. United States v. Paradise. 480 

U.S. 149, 171 (1987); Local 28 Sheet Metal Workers v. EEOC. 478 U.S. 421, 481 (1986) 

(Powell, J., concurring); Wvgant. 476 U.S. at 293.

First, the congressional plan does not create more majority black districts than 

necessary to address the compelling interests. Indeed, as plaintiffs point out, the legislature 

rejected proposals to create two majority black districts.

32 As with all redistricting plans, the congressional plan is a temporary measure that will 
be in place only until the end of the decade.

33 Having failed to allege facts sufficient to establish standing, plaintiffs have made 
absolutely no showing of any harm they suffer from residing, organizing or campaigning in a 
congressional district drawn to provide black voters with an opportunity to elect candidates of 
their choice.

29



Second, in light of the pervasive history of racial discrimination, racial polarization, 

and depressed levels of black officeholding, the Third District does not contain more black 

voters than reasonably necessary to address the compelling interest of eradicating the 

continuing effect of past discrimination and complying with Section 2. Indeed, the Third 

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. District Population Analysis 

for Plan C0830452, Attachment 11. 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-

When redistricting, legislatures cannot be held to a duty of calculating in advance to

the precise percentage point the population of majority-minority districts required to comply

with the Voting Rights Act. Plaintiffs would have legislatures err on the side of minority

vote dilution. Majority-minority districts are not drawn to the specifics of a particular

candidate, but to provide an equal opportunity to minority voters. The legislature cannot be

required to predict the outcomes of elections in previously non-existent majority black

districts. Section 2 requires a complete remedy of vote dilution, with the margin of error

falling in favor of protecting against race discrimination. 1982 U.S. Code Cong. & Admin.

News at 208. For purposes of the narrow tailoring analysis, legislatures must be given some

reasonable leeway in establishing population percentages, particularly where there is no

history of minority officeholding for the office in question. As Representative Quillan stated:

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

30



threshold, 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 . . .

October 11, 1991 Public Hearing, pp. 99, Attachment 14.

Third, as discussed above, race was used to fulfill the State’s compelling interest in 

complying with the Voting Rights Act, while recognizing other legitimate state redistricting 

interests, such as partisan political interests.

IV. MATERIAL FACTS AS TO WHICH A GENUINE ISSUE EXISTS

In response to plaintiffs’ statement of material facts as to which they contend there is 

no genuine issue, intervenors respond as follows.

1. Dispute. This is not a proper statement of fact, but is argument. The 

Commonwealth’s obligation under Section 5 was to demonstrate the lack of racially 

discriminatory purpose or effect, not to discuss each and every non-racial reason for the plan 

it adopted.

2. Intervenors do not dispute that the Section 5 submission states:

Extensive redrawing of district lines was necessitated in the remainder of the 
Commonwealth, however, to meet ideal population standards, establish a 
majority black district, and create a new open district in the Northern Virginia 
area of highest population growth.

Plaintiffs’ Appendix P. Intervenors dispute that these were all of the Commonwealth’s 

purposes.

3. Dispute. The significant deviation between districts under the 1980s plan 

which violated the one person-one vote guarantee, as well as the addition of an eleventh

31



district, mandated significant changes. October 11, 1991, Public Hearing, pp. 7-9, and 

"Drawing the Line," January, 1991, Attachment 14; November 13, 1991, Public Hearing, 

p. 94, Attachment 17.

4. Dispute. This statement of fact is unclear as to meaning of "these cities." See 

also response to Number 4, supra.

5. Dispute. See response to Number 4, supra.

6. Dispute. Districts 1, 2, 3, 4, and 7 all had unacceptably high deviations from 

the one person - one vote requirement; see response to Number 4, supra.

7. Intervenors admit that parts of former Districts 1, 2, 3, and 4 comprise the 

current Third. Intervenors dispute that only black populations were located in the Third 

District.

8. Dispute. See Plaintiffs’ Fact Number 10 admitting prior practice of splitting 

jurisdictions; see also November 7, 1991 Public Hearing, at pp. 25-26, 29 Attachment 15; 

see also response to number 4.

9. Dispute. Portions of some of the cities listed by plaintiffs are conmnected by 

land. See map of District 3.

10. Intervenors do not dispute that the Commonwealth’s prior congressional plan 

which only included 10 seats split localities.

11. Intervenors do not dispute that the current plan splits jurisdictions. However, 

intervenors dispute that these splits were necessary for the creation of a majority black 

congressional district or to comply with the Voting Rights Act. See List of Congressional

32



District Plans, Attachment 20; November 13, 1991 Public Hearing, p. 104, Attachment 17; 

October 14, 1991 Public Hearing, p. 52, Attachment 14.

12. Dispute. As evident from the transcript, Delegate Robinson was discussing the 

Black Caucus plan which included two majority black districts, not the adopted plan or even 

the working plan. November 19, 1991 Committee Meeting, at pp. 4-22.

13. Dispute. Assertion is not a correct paraphrase of Senator Gartlan’s question. 

The question speaks for itself. See Joint Committee Hearing, November 13, 1991 at 64.

14. Dispute. Document does not so indicate. Intervenors also dispute the 

reliability and value of such mathematical measures of politically designed districts.

15. Intervenors dispute that this cite supports plaintiffs’ fact. Intervenors admit 

that the General Assembly indicated an intent to comply with the Voting Rights Act as well 

as other redistricting requirements in its 1990s redistricting plan.

16. Dispute. The referenced cite does not support the fact alleged.

17. Intervenors dispute that the legislature relied on only census data in developing 

its congressional redistricting plan.

18. Dispute. No voters were classified by race. Rather, the Commonwealth 

assigned population, black and white, to districts to comply with federal law.

19. Dispute. Lines were drawn with race as merely one factor in the legislature’s 

consideration, not as the predominant factor. Lines follow many different non-racial 

boundaries. In Hampton, for example the District 3 line follows Mercury Boulevard, which 

is a major thoroughfare and happens to divide the city largely along racial lines. Section 5 

submission.

33



20. Dispute. This fact statement is unclear as to meaning of "substantial." All 

plans presented in the legislature included at least one majority black district. List of 

Congressional District Plans, Attachment 20. These plans included districts of different 

shapes and sizes. See response to number 11, supra.

21. Dispute. See responses to number 11 and 20, supra: see also Intervenors’ 

Attachment 22.

22. Intervenors do not dispute this. To have diminished the percentage would 

have been retrogressive under Section 5.

23. See response to No. 22, supra.

24. Dispute. The statement of fact is unclear as to the meaning of "the District." 

The Third District was created to provide black voters an equal opportunity to elect a 

candidate of choice, as mandated by the Voting Rights Act.

25. Dispute. The Attorney General precleared Virginia’s congressional plan with 

only one majority black district even though plans with two majority black districts were 

proposed. See Intervenors’ Attachment 20. Factual findings in Miller do not bind non- 

parties such as intervenors.

26. No dispute.

27. Dispute. Plaintiffs cite no support.

The additional facts are in dispute.

28. Congressional District 3 is not a racial gerrymander.

29. Race was not the predominant factor in the Virginia General Assembly’s 

decision to enact its current congressional plan or District 2.

34



30. The Commonwealth of Virginia had compelling state interests in creating 

Congressional District 3.

31. African-Americans in Virginia are sufficiently numerous and geographically 

compact to constitute a majority in a single-member district for Congress.

32. Voting in Virginia is racially polarized.

33. District 3 is narrowly tailored to serve the state’s compelling state interests in 

creating Congressional District 3.

Following fact not in dispute:

34. Partisanship and incumbency protection played a significant and substantial 

role in shaping all 11 congressional districts in Virginia. Smith Deposition, pp. 84-85, 

Attachment 19.

CONCLUSION

For all the foregoing reasons, plaintiffs’ motion for summary judgment should be

denied.

MARY WYCKOFF 
American Civil Liberties Union 
132 W. 43 Street 
New York, New York 10036

Respectfully submitted,

STEPHEN B. PERSHING
Virginia Bar No. 31012
American Civil Liberties Union of Virginia
6 N. 6th St., Suite 400 
Richmond, VA 23219 
(804) 644-8080

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J. GERALD HEBERT 
Virginia Bar No. 38432 
800 Parkway Terrace 
Alexandria, VA 22302

M. LAUGHLIN MCDONALD 
NEIL BRADLEY 
MAHA S. ZAKI 
American Civil Liberties 

Union Foundation, Inc.
44 Forsyth Street, N.W. Suite 202 
Atlanta, GA 30303

ELAINE R. JONES, Director-Counsel 
THEODORE M. SHAW 
NORMAN J. CHACHKIN 
NAACP Legal Defense

and Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, New York 10013

PENDA HAIR
CASSANDRA Q. BUTTS
NAACP Legal Defense and Educational Fund
1275 K. St. NW Suite 301
Washington, DC 20005

PAMELA S. KARLAN 
580 Massie Road 
Charlottesville, VA 22903

ATTORNEYS FOR DEFENDANT-INTERVENORS 

Dated: (o y  19 9*-

*  5k 5fc

CERTIFICATE OF SERVICE

Q> T K'tI certify that on th is______ day of S______ , 1996, I caused the foregoing
brief, with attachments, to be hand-delivered to Stephen A. Katsurinas, Esq., Hirsch, Robinson, 
Sheiness & Glover, 700 East Main Street, Suite 1603, Richmond, VA 23219, counsel for 
plaintiffs, and to Frank Ferguson, Esq., and Mary E. Shea, Esq., Office of the Virginia 
Attorney General, 900 East Main Street, Richmond, VA 23219, counsel for defendants; and to 
be mailed first class, postage prepaid, to Paul Loy Hurd, Esq., 1101 Royal Avenue, P.O. Box 
2190, Monroe, LA 71207, counsel for plaintiffs.

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