By Ashley Eick
As a slew of lawyers scurried around trying to organize their maps and evidence, Judge Payne sat calmly in the center of a three-judge panel. In late May of 2014, high-powered lawyers boiled down mountains of statistics, diagrams, and expert opinions into a two-day bench trial. They needed to convince Judge Payne and two Fourth Circuit judges to rule that the General Assembly primarily used race to concoct Virginia’s fantastically shaped 3rd congressional district. Against all odds, they succeeded.
Although all the attention and spotlight has been on Alabama, Virginia has been facing its own mudslinging, partisan wrangling, racial packing lawsuit. Three plaintiffs – Dawn Curry Page, Gloria Personhuballah and James Farkas – have challenged the constitutionality of Virginia’s 3rd congressional district as a racial gerrymander in violation of the Equal Protection Clause. They allege that the General Assembly “packed” black voters into the 3rd district, Virginia’s only minority-majority district, to dilute minority influence in the surrounding predominantly white districts. In the enacted plan, the black voting-age population increased from 53.1 percent to 56.3 percent while it decreased in every adjacent district. Furthermore, African-Americans “accounted for over 90% of the added voting age residents.”
In light of Shelby County, the Plaintiffs argue that the Defendants cannot use Section 5 non-retrogression requirements as a defense for racially packing the 3rd district. As such, the Plaintiffs contend that the General Assembly’s use of race as a predominant factor in drawing district lines is unconstitutional under Shaw.
In a time-tested response, the Defendants argue that politics not race was the predominant districting factor. The Republican-controlled General Assembly wanted to keep Democrats in the 3rd District to keep them out of the surrounding districts leading to a perpetual 8-3 Republican majority for Virginia congressional seats.
The enacted plan is a stark contrast to the Democratic plan, which decreased the black voting-age population in the 3rd District from 53 percent to 42 percent and increased the black voting-age population in the Republican-incumbent 4th district from 33 percent to 51 percent thereby jeopardizing the 4th district’s incumbent. The Defendants contend that virtually every change made in the enacted plan had equivalent political and racial effect on the overall composition of the district, and that the predominant goal, as contrasted by the Democratic alternative, was to solidify incumbent seats. As such, they reason that the Plaintiffs cannot prove that race rather than politics predominated the district changes.
The Plaintiffs argue that the 3rd district’s bizarre and irregular shape proves that the General Assembly did, in fact, use race rather than politics as its predominant redistricting criteria. According to the Plaintiffs, the 3rd district “is an archipelago of largely Black communities connected by the James River.” The district starts north of urban Richmond, ends abruptly at James City County, makes a horseshoe shape in Newport News, and skips southern and eastern Newport News stopping in Hampton. The other half of the district “starts anew on the southern shore of the James River, first darting west to swallow Petersburg and then sliding east through Surry. It then hops over Isle of Wight, which is in the 4th district, grabs Portsmouth, and runs up into Norfolk.”
To explain this map, the Plaintiffs argue that the General Assembly subordinated traditional redistricting criteria in favor of racial considerations. The 3rd district is the least compact congressional district. It is only contiguous via waterways; two different congressional districts sever the 3rd district on land. The 3rd district also has the most locality splits in the state.
As Virginia’s only minority-majority district, the 3rd district is no stranger to lawsuits. After the 1990 census, the Department of Justice ordered Virginia to create a black-majority district to satisfy the Voting Rights Act. In 1997, however, a federal three-judge panel held that the district was an unconstitutional racial gerrymander under Shaw. The current plan has very similar boundaries as that 1997 plan.
With the future of racial gerrymandering litigation hanging in the balance, the three-judge panel ruled in the Plaintiffs’ favor. In a 2-1 decision, the Eastern District of Virginia held that race was, in fact, the predominant factor in drawing the 3rd district’s boundaries. Although the Supreme Court will ultimately take up the issue of racial packing with Alabama Legislative Black Caucus v. Alabama, the Eastern District asserted that the General Assembly unconstitutionally packed black voters into the 3rd district under the guise of upholding the Voting Rights Act. The Court has given the General Assembly until April to redraw the 3rd district. With a Republican-controlled General Assembly and a Democratic governor, Virginia’s battle of the lines will most certainly be contentious.