FILED
No. 11-1404
OFFICE OF "I’Ht~ISLERK
~tate~
VANDROTH BACKUS, et al.,
Appellants,
Vo
SOUTH CAROLINA, et al.,
Appellees.
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF SOUTH CAROLINA
MOTION TO DISMISS OR AFFIRM
Robert E. Stepp
Counsel of Record
Robert E. Tyson, Jr.
SOWELL GRAY
STEPP ~¢ LAFFITTE
1310 Gadsden Street
Post Office Box 11449
Columbia, SC 29211
(803) 929-1400
rstepp@sowellgray.com
Counsel for Appellees
Benjanxin P. Mustian
Tracey C. Green
WILLOUGHBY & HOEFER, P.A.
930 Richland Street
Post Office Box 8416
Columbia, SC 29202
(803) 252-3300
Counsel for Appellees
Dated: July 20, 2012
THE LEX GROUPpC ¯ 1825 K Street, N.W. ¯ Suite 103 ¯ Washington, D.C. 20006
(202) 955-0001 ¯ (800) 856-4419 ¯ Fax: (202) 955-0022 ¯ v~vw.thelexgroup.com
QUESTIONS PRESENTED
Appellants instituted this action in the United
States District Court for the District of South
Carolina seeking declaratory and injunctive relief
regarding redistricting plans adopted by the South
Carolina General Assembly for the State House of
Representatives and Congressional districts. The
three-judge panel determined that Appellants failed
to establish that race was the predominant factor
used by the legislature in drawing the districts or to
prove that the General Assembly engaged in
intentional discrimination in drawing the district
lines. In addition, the panel correctly~ refused to
consider Appellants’ generalized grievances directed
against districts in which none of them lived, only
considering Appellants’ racial gerrymandering
claims to the extent an individual plaintiff resided in
a district that was the primary focus of their claim or
provided specific evidence that they have been
subjected to a racial classification.
The Questions Presented are:
1.
Because the district court determined
that Appellants failed to prove that the legislature
used race as the predominant factor or subordinated
traditional race-neutral principles to race as the
primary consideration for drawing district lines,
should the Court dismiss an appeal that contends, in
an argument not presented to the district Court, that
strict scrutiny of redistricting plans is required if
race was a factor, but not the predominant factor, in
the creation of new districts?
ii
2.
Should this Court affirm the district
court’s determination that Appellants do not have
standing to assert a racial gerrymandering claim
concerning districts in which none of them lived and
regarding which they did not produce any evidence
that they personally were subjected to a racial
classification?
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................i
TABLE OF CONTENTS ............................................iii
TABLE OF AUTHORITIES .......................................
vi
INTRODUCTION ........................................................ 1
STATEMENT OF THE CASE ....................................4
1.
The Redistricting Process ......................
4
2.
Plaintiffs’ Allegations ............................
5
3.
Hearing on Respondents’
Motions to Dismiss ................................
7
4.
Trial Before the Three-Judge
Panel .......................................................9
5.
The Decision of the District Court ......
12
ARGUMENT ..........................................................:.. 15
I.
Aside From Being Procedurally
Barred, Appellants’ Fourteenth
Amendment Claims Fail as a
Matter of Law and are
Unsupported by the Record .................17
iv
no
Appellants did not raise
the "race is a factor"
argument below .........................
18
Bo
Appellants misstate their
burden of proof ..........................19
Co
Appellants failed to
demonstrate race was the
predominant factor ...................
26
Representative
Sellers and other
legislators .......................27
2.
Dr. McDonald .................28
The
court’s
estimation of the
evidence .......................... 30
4.
II.
Summary ........................31
Plaintiffs Lack Standing Under
United States v. Hays ..........................32
CONCLUSION .......................................................... 37
APPENDIX
Excerpt of Trial Testimony of
Circuit Court Hearing
on March 1 and 2, 2012 .......................la
V
Excerpt of Trial Testimony of
Circuit Court Hearing
on March I, 2012 ............................... 26a
Affidavit of Patrick G. Dennis
entered February 28, 2012 ............... 51a
Excerpt of Trial Testimony of
Circuit Court Hearing
on January 19, 2012 .......................122a
Defendant’s Motion to Dismiss on
Behalf of Robert W. Harrell, Jr.,
With Attached Memorandum to Support,
entered December 19, 2011 ............ 125a
Plaintiffs’ First Amended Complaint
For a Declaratory Judgment and
Injunctive the State of South Carolina,
Relief Pursuant to the Fourteenth and
Fifteenth Amendments of the
United States Constitution and the
Voting Rights Act of 1965
entered November 23, 2011 ............ 177a
vi
TABLE OF AUTHORITIES
Page(s)
CASES
Bartlett v. Strickland,
556 U.S. 1 (2009) ............................................ 16
Bush v. Vera,
517 U.S. 952 (1996) ............................ 20, 24, 26
Colleton County Council v. McConnell,
201 F. Supp 2d 618 (D.S.C. 2002) ............ 13, 29
Easley v. Cromartie,
532 U.S. 234 (2001) ...................... 16, 20, 24, 34
Gonzales v. Duenas-Alvarez,
549 U.So 183 (2007) ............................. ~ .......... 19
Keyes v. School Dist. No. 1, Denver,
413 U.S. 189 (1973) ........................................36
League of United Latin Am. Citizens v. Perry,
548 U.S. 399 (2006) ........................................34
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ........................................ 33
Miller v. Johnson,
515 U.S. 900 (1995) ................................ passim
vii
Mt. Healthy City School District
Board of Education v. Doyle,
429 U.S. 274 (1977) .................................. 21, 22
Nat’l Collegiate Athletic Ass’n v. Smith,
525 U.S. 459 (1999) ........................................19
Phillips Chem. Co. v. Dumas Indep. Sch. Dist.,
361 UoSo 376 (1960) ..........................................2
Quilloin v. Walcott,
434 U.S. 246 (1978) .................................... 2, 10
Reno v. Bossier Parish Sch. Bd.,
520 U.S. 471 (1997) .......................................... 8
Shaw v. Reno,
509 U.S. 630 (1993) ................................ passim
Sinkfield v. Kelley,
531 U.S. 28 (2000) ................................ 3, 32, 36
Thornburg v. Gingles,
478 U.S. 30 (1986) .......................................... 11
United States v. Hays,
515 U.S. 737 (1995) ................................ passim
Vieth v. Jubelirer,
541 U.S. 267 (2004) ........................................ 34
VIII
Village of Arlington Heights v.
Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977) ........................ 2, 20, 21, 22
Washington v. Finlay,
664 F.2d 913 (4th Cir. 1981) ..........................21
CONSTITUTIONAL PROVISIONS
U.So Const. amend. XIV ....................................passim
U.S. Const. amend. XV .......................................1, 2, 6
STATUTES
42 U.S.C. § 1973 .......................................................... 1
42 U.S.C. § 1973c .............................................. 1, 5, 11
RULES
Sup. Ct. R. 14 .............................................................. 2
Sup. Ct. R. 14.1(a) .......................................................2
Sup. Ct. R. 18.3 ........................................................... 2
Sup. Ct. R. 18.6 ........................................................... 1
ix
OTHER AUTHORITIES
House Bill 3991 (H. 3991) ..........................................
4
House Bill 3992 (H. 3992) ..........................................
4
Public Law 94-171 (1975) ...........................................4.
S.C. House of Representatives Redistricting
2011 Home Page, available at
http ://re districting, schouse, gov/ .................................. 4
Gina Smith, House Approves Redistricting
Plans, Dems Plan to Sue, The State, June 15,
2011,
available
at
http://redistricting.schouse.gov/Preclearance
SubmissionH3991.html ...............................................
5
MOTION TO DISMISS OR AFFIRM
Pursuant to Supreme Court Rule 18.6,
Respondent Robert W. Harrell, Jr., in his capacity as
Speaker of the South Carolina House of
Representatives, respectfully moves the Court for an
order dismissing this appeal or, in the alternative,
affirming the decision of the United States District
Court three-judge panel entered on March 9, 2012.
INTRODUCTION
Following administrative preclearance of
South Carolina’s State House of Representatives and
Congressional redistricting plans pursuant to
Section 5 of the Voting Rights Act, ("VRA"), 42
U.S.C. § 1973c, Appellants filed an action in the
United States District Court for the District of South
Carolina seeking declaratory and injunctive relief.
The matter was tried on March 1, 2012 before a
three-judge panel. At trial, Appellants alleged (1) a
violation of Section 2 of the VRA, 42 U.S.C. § 1973;
(2) a Fourteenth Amendment racial gerrymandering
claim; (3) a convoluted vote dilution claim under the
Fourteenth Amendment; and (4) a violation of the
Fifteenth Amendment as to both the House and
Congressional redistricting plans. Following trial,
the district court entered judgment in favor of
Respondents.
Appellants’ jurisdictional statement does not
present many of the claims raised to the district
court. Appellants do not raise their previous vote
dilution challenges to the House Plan under Section
2 of the VRA and under the Fourteenth and
2
Fifteenth Amendments. Appellants do not seek
review of any claims pertaining to the Congressional
plan. Appellants therefore have abandoned these
issues, leaving the general Fourteenth Amendment
claim as the sole argument presented for
consideration by the Court. See Quilloin v. Walcott,
434 U.S. 246, 253 n.13 (1978) ("Since this claim was
not presented in appellant’s jurisdictional statement,
we do not consider it."); Phillips Chem. Co. v. Dumas
Indep. Sch. Dist., 361 U.S. 376, 386 & n.12 (1960)
("Only issues raised by the jurisdictional statement
or petition for certiorari, as the case may be, are
considered by the Court."); Sup. Ct. R. 18.3 ("The
jurisdictional statement shall follow, insofar as
applicable, the form for a petition for a writ of
certiorari prescribed by Rule 14 . . ."); Sup. Ct. R.
14.1(a) ("Only the questions set out in the [petition
for a writ of certiorari], or fairly included therein,
will be considered by the Court."). Appellants also
challenge the district court’s holding that they lack
standing to assert claims as to certain districts,
because none of the named plaintiffs resides in those
districts.
The "central" question presented in this
appeal is "whether the Fourteenth Amendment
permits a state to use race non-remedially to pack
black voters into election districts, over and above
the levels the VRA requires." (J.S. 5.) Appellants
allege that the district court misunderstood their
Fourteenth Amendment packing claim and erred by
construing Appellants’ claim as "a conventional
Shaw v. Reno challenge." (Id.) Appellants further
contend that the district court "ignored [the] wellestablished Arlington Heights/Mt. Healthy
framework of shifting burdens for determining
causation in mixed-motive cases" and instead
"purported to rely on the line of ’racial
gerrymandering’ decisions starting with Shaw v.
Reno, 509 U.S. 630 (1993) .... " (Id.) Finally,
Appellants challenge the district court’s decision
that "Plaintiffs had standing to assert racial
gerrymandering claims only if they ’live in the
district that is the primary focus of their.., claim’ or
they provide specific evidence that they ’personally
have been subjected to a racial classification."’
(Appellants’ App. A, p. 7a.) (Citations omitted.)
As the district court noted, there are two types
of equal protection claims that challenge the use of
race in reapportionment: racial gerrymandering
claims and vote dilution claims--claims that this
Court has observed are "analytically distinct."
Miller v. Johnson, 515 U.S. 900, 911 (1995) (internal
quotation marks omitted); See Also Appellants’ App.
A, p. 5a. Because Appellants have abandoned their
vote dilution claim, the only issue presented is
whether the House plan constitutes a racial
gerrymander in violation of the Fourteenth
Amendment. The district court correctly applied
Shaw v. Reno in analyzing this claim, and
Appellants’ contention to the contrary is without
merit. In rejecting Appellants’ standing arguments,
the district court properly followed this Court’s prior
rulings in United States v. Hays, 515 U.S. 737 (1995)
and Sinkfield v. Kelley, 531 U.S. 28 (2000) (per
curiam), among others. Because Appellants’ claims
are foreclosed by this Court’s redistricting
jurisprudence, the Court should either dismiss
4
Appellants’ appeal or affirm the decision of the
district court in its entirety.
STATEMENT OF THE CASE
This appeal arises out of challenges to the
State of South Carolina’s enactment of redistricting
plans for the South Carolina House of
Representatives and the state’s Congressional
districts.
1.
The Redistricting Process.
The South Carolina General Assembly’s
("General Assembly") redistricting efforts began
following the March 23, 2011 release of the official
tabulation of the population of the State of South
Carolina by the United States Census Bureau
pursuant to Public Law 94-171 (1975). After release
of the 2010 Census data and the subsequent
reapportionment of Congressional districts, through
which the state gained a Congressional seat, South
Carolina had 124 House districts and seven
Congressional districts. (Resp’ts’ App. p. 186a, ¶ 26.)
House Bill 3991 (H. 3991) and House Bill 3992 (H.
3992) were the legislative vehicles for redrawing the
State House and Congressional districts. See S.C.
House of Representatives Redistricting 2011 Home
Page, available at http://redistricting.schouse.gov/.
The State House and State Senate ultimately
passed and ratified, and Governor Nikki R. Haley
signed, H. 3991 and H. 3992, thereby enacting the
redistricting plans into law as Act 72 of 2011 ("House
5
Redistricting Plan")1 and Act 75 of 2011
("Congressional Redistricting Plan") (collectively the
"Redistricting Plans").2 Subsequently, the General
Assembly submitted the plans to the United States
Department of Justice ("DOJ") for administrative
preclearance pursuant to Section 5 of the VRA. DOJ
granted preclearance to each redistricting plan
thereby establishing that the enacted plans do not
reduce minority voting strength as compared to the
pre-existing plans.
2.
Plaintiffs’ Allegations.
Following preclearance, Appellants filed a
declaratory judgment action on November 11, 2011
challenging the House and Congressional
Redistricting Plans. Subsequently, on November 23,
2011, Appellants filed a First Amended Complaint
that, inter alia, added McKnight and Mims as
1 The General Assembly passed the House Redistricting
Plan on June 22, 2011. The vote included the affirmative vote
of many Democrats and members of the Legislative Black
Caucus. The bipartisan support of H. 3991 was reflected in
public comments made by Representative Harry Ott, House
Minority Leader, that "[t]his plan is fair." 2011 House of
Representatives Preclearance Submission, Ex. 19 - Newspaper
articles discussing the South Carolina Redistricting Process
and
H3991,
Gina
Smith,
House Approves Redistricting Plans, Dems Plan to Sue,
The State, June 15, 2011, available at
http://redistricting.schouse .gov/PreclearanceSubmissionH3991.
html. (Governor Haley signed the House Redistricting Plan on
June 28, 2011.
2 The General Assembly also passed the Congressional
Redistricting Plan on July 26, 2011 with bi-partisan support.
Governor Haley signed the Congressional Redistricting Plan on
August 1, 2011.
plaintiffs ("Amended Complaint").3 In the Amended
Complaint, Appellants alleged they were registered
black voters residing in various House and
Congressional districts in the State of South
Carolina seeking to challenge the implementation
and enforcement of the Redistricting Plans.
Appellants sought both declaratory and injunctive
relief under Section 2 of the VRA and the Fourteenth
and Fifteenth Amendments to the United States
Constitution.
Appellants alleged that each of the
redistricting plans "use race as the predominant
factor in drawing election district boundaries" and
"result in a diminution in the political power of black
voters whose influence is diluted by packing them
into election districts in concentrations that exceed
what is necessary and lawful to give them an equal
opportunity to participate in the political process."
(Resp’ts’ App. p. 179a, ¶ 2.) Appellants also alleged
that the House Redistricting Plan (a) packed black
voters into districts in order to create nine new
majority-minority seats; (b) wrongfully preserved the
twenty-one majority-minority seats that existed
under the benchmark plan; (c) reduced the black
voting age population ("BVAP") percentage in house
districts where blacks allegedly are able to elect a
candidate of choice with support of the white
community; and (d) disproportionately diminished
3 Originally, Plaintiffs challenged the South Carolina State
Senate redistricting plan but voluntarily withdrew that
challenge before trial and filed a Second Amended Complaint
without the Senate Challenge. The Second Amended
Complaint has the same claims as the First Amended
Complaint referenced through this motion.
7
the political power of black voters in poor, rural
counties. (Id. ¶¶ 43, 45.)
Similarly,
Appellants
alleged
that
Congressional Redistricting Plan (a) unnecessarily
adds BVAP to the Sixth Congressional District;
(b) reduces the BVAP in other districts, thereby
"reducing or eliminating the possibility that black
voters in these districts could work together with
part of the white community to elect a candidate of
choice;" and (c) created a new Seventh Congressional
District with a BVAP low enough "to make it
unlikely black voters would have an equal
opportunity to elect a candidate of choice by joining
together with part of the white community." (Id.
¶ 47.) Appellants also claimed the redistricting
plans "deliberately reduce the number of ’crossover’
districts or prevent them from emerging over time
through natural population shifts." (Id. ¶ 79.)
Hearing on Respondents’ Motions
to Dismiss.
On December 19, 2011, Respondents moved to
dismiss the Amended Complaint on several grounds.
Among other arguments, Respondents averred that
the Amended Complaint did not state a cognizable
claim under Section 2 of the VRA because Appellants
failed to allege the presence of a minority group
sufficient to constitute a majority in another district.
Respondents also argued that Appellants failed to
present a reasonable alternative voting practice
demonstrating a hypothetical redistricting scheme
that would result in an ’undiluted’ voting practice.
(Resp’ts’ App. pp. 146a-147a, 154a-155a.) See also
8
Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 480
(1997) ("Because the very concept of vote dilution
implies--and, indeed, necessitates--the existence of
an ’undiluted’ practice against which the fact of
dilution may be measured, a § 2 plaintiff must also
postulate a reasonable alternative voting practice to
serve as the benchmark ’undiluted’ voting practice.").
Respondents further moved for dismissal based on
Appellants’ failure to allege any intentional or
purposeful racial motivation for the Redistricting
Plans or for the General Assembly’s retention and
maintenance of majority-minority districts
throughout the state. (Resp’ts’ App. p. 158a-159a.)
Finally, Respondents moved to dismiss the claims of
certain plaintiffs for lack of standing in that they
were not residents of the districts challenged in the
Amended Complaint and only alleged generalized
grievances against the statewide plans. (Id. at 163a164a.)
The district court denied the motions to
dismiss, but expressed concern about the nature of
Appellants’ claims and required Appellants to define
their claim and the districts they challenge, and to
provide an alternative remedy plan. (Appellants’
App. A, p. 4a.) In response, Appellants alleged that
twenty-one House districts and one Congressional
district were objectionable based on the alleged use
of race as the predominant factor in their creation.
Of the districts specified, only four plaintiffs resided
in a challenged House district and only one plaintiff
resided in the challenged Congressional district.
Appellants also averred that thirty-nine additional
House districts and four additional Congressional
districts were objectionable as affected neighbor-
9
districts because they were drawn from territory
taken from those districts alleged to have been
the predominant factor.
drawn using race as
Appellants further submitted alternative
redistricting plans forthe court’s consideration
which purportedly demonstrated how Respondents
could have drawn districts that adhered to race
neutral redistricting principles while also continuing
to give black voters an equal opportunity to elect
candidates in the racially gerrymandered districts.
4.
Trial Before the Three-Judge
Panel.
On March 1, 2012, the panel convened for the
parties to present evidence on the Amended
Complaint. Pursuant to the court’s order and
agreement of the parties,4 the trial was abbreviated
by the use of affidavits5 and deposition testimony,
with the panel allowing two days of live testimony.
4 In their Jurisdictional Statement, Appellants state
that the trial held in this matter was "dramatically truncated,"
appearing to suggest that they were somehow disadvantaged in
this regard. (J.S. 14.) Respondents note that, not only did
Appellants fail to object to the court’s abbreviated trial
scheduling order, they accepted the proposed time frame’s,
representing to the court, "[w]e’re not complaining. We think
it’s necessary." (Resp’ts’ App. p. 122a.)
~ Appellants also unfavorably reference the court’s
rejection of certain portions of an affidavit submitted by
Representative Mia Butler-Garrick on the grounds that
statements allegedly made by Representative Thad Viers
contained therein constituted inadmissible hearsay. Appellants
assert that "[w]ere this case to be remanded, plaintiffs would
subpoena Rep. Viers to testify, obviating the hearsay objection."
(J.S. 13.) But this issue cannot fairly be said to be included in
10
Appellants presented the testimony of South
Carolina State Representative Bakari Sellers, who
insisted that race was the "predominant" if not "the
only factor" considered by the General Assembly in
the redistricting process. (Resp’ts’ App., p. 26a.)
Yet, on cross examination, Representative Sellers
recanted, admitting that the General Assembly
considered many other factors during the
redistricting process and that race, in fact, did not
predominate. (Id. at 40a-45a.)
Appellants also presented the testimony of Dr.
Michael P. McDonald who opined that race was the
predominant factor considered by the General
Assembly in drawing twenty House districts and the
Sixth Congressional District. In reaching his
conclusions, Dr. McDonald followed a simplistic twostep approach. First, he identified certain districts
that exchanged populations with adjoining districts.
(Appellants’ App. A, p. 11a.) Second, Dr. McDonald
reviewed the plan to determine whether these
exchanges resulted in increased or decreased BVAP.
(Id.) As exchanges of population almost always have
differing minority population percentages, it is not
surprising that, through the use of this misguided
and illogical approach, Dr. McDonald concluded that
race must have been the predominant factor in
making those adjustments. However, Dr. McDonald
conceded on cross examination that his analysis was
the questions presented by Appellants and thus is not
presented properly to this Court. See Quilloin, 434 U.S. at 253
n.13 ("Since this claim was not presented in Appellants’
jurisdictional statement, we do not consider it.’) Moreover, by
not attempting to subpoena Rep. Viers for trial, Appellants
have failed to preserve this issue on appeal.
11
flawed and that he had failed to review the
Redistricting Plans to determine whether they
complied with a number of traditional redistricting
principles historically recognized by the courts and
adopted by the Respondents as guiding principles in
crafting the Plans ("Redistricting Criteria").6
Additionally, Dr. McDonald abjured
Appellants’ alternative redistricting plans submitted
Although Appellants previously
to the court.
asserted these plans placed a premium on
maintaining core constituencies, improving
compactness, and keeping or making communities of
interest whole, Dr. McDonald acknowledged that the
alternative plans failed to comply with many
traditional redistricting principles. (Resp’ts’ App. p.
16a-19a.) Dr. McDonald also stated he could not
testify whether his proposed plan would comply with
Section 2 or Section 5 of the VRA, and that he had
not considered prior court orders recognizing that
certain districts should be protected as meeting the
requirements of Thornburg v. Gingles, 478 U.S. 30
(1986). (Id. at 19a-24a.) Tellingly, Dr. McDonald
testified that he did not expect the court to adopt
Appellants’ alternative plans. (Id. at 24a-25a.)~
~ Dr. McDonald acknowledged that he did not consider
whether the population exchanges between districts were made
in order to recognize communities of interest, maintaining
political subdivision boundaries, incumbency, or the specific
redistricting criteria adopted by the House. (See, e.g., Resp’ts’
App. p. 6a-Sa; p. 13a-14a.)
7 Appellants also offered testimony via affidavit of
United States Representative James E. Clyburn, South
Carolina Senator Brad Hutto; and South Carolina
Representative Mia Butler Garrick.
12
In response, Patrick Dennis, Chief Counsel to
the Judiciary Committee for the South Carolina
House of Representatives, testified by affidavit that
each of the challenged districts complied with the
Redistricting Criteria by maintaining the cores of
existing districts, moving certain district lines to
abide by political subdivision boundaries, protecting
incumbents, and reflecting the protection of
communities of interest. (See, generally, Resp’ts’
App. pp. 51a-121a.) Dr. Thomas L. Brunell also
testified the Redistricting Criteria are racially
neutral and reflect traditional redistricting
principles, and that Dr. McDonald’s opinion was not
the result of any statistical analysis or supported by
any empirical evidence.
5.
The Decision of the District Court.
The district court issued its order on March 9,
2012. With respect to Appellants’ Fourteenth
Amendment racial gerrymandering claim, the court
concluded that Appellants failed to establish that
race was a predominant factor in either of
the Redistricting Plans. (Appellants’ App. A, pp.
8a-19a.) The court found that Appellants’ expert,
Dr. McDonald, "relied on incomplete information
when reaching his determination that traditional
race-neutral principles were subordinated," and
"neglected to consider important sources of
information in reaching his conclusion." (Id. at 12a.)
Particularly troubling for the court was Dr.
McDonald’s "admission that he failed to consider the
guidelines and criteria that the General Assembly
devised for the redistricting process, which .
13
contained guiding race-neutral principles." (Id.)
The district court found that Dr. McDonald
"neglected to review the prior three judge panel’s
decision in Colleton County Council v. McConnell,
201 F. Supp 2d 618 (D.S.C. 2002) even though it
contained a discussion of the traditional race-neutral
principles that guide South Carolina redistricting."
(Id. at 12a-13a.) The failure to consult this
information "resulted in his rendering an opinion
without considering all the race-neutral principles
that have traditionally guided redistricting in South
Carolina." (Id. at 13a.)
Likewise, the court found Representative
Sellers’ testimony to be "insufficient to show that
race predominated in creating the House and
Congressional plans." (Id. at 17a.) The court
determined Representative Sellers’ testimony was
replete with "generalized statements" that the
legislature subordinated traditional race-neutral
principles to race, "but he never provided any
in-depth explanation as to where or how." (Id.)
Moreover, the court found that "[a]t other times,
Representative Sellers applauded the General
Assembly for abiding by a number of specific raceneutral criteria, such as incumbency protection, and,
as relating to the Sixth Congressional District,
public testimony." (Id. (internal citations omitted).)
In the end, the court concluded that Appellants
"focused too much on changes that increased the
BVAP in certain districts and not enough on how
traditional
race-neutral
principles
were
subordinated to race in making those changes," and
therefore Appellants "failed to prove a Fourteenth
14
Amendment racial gerrymandering claim." (Id. at
18a.)
The panel also concluded that Appellants’
Fourteenth Amendment claim was "not abundantly.
clear," (Id. at 4a), and found that there was "no
convincing direct evidence indicating that the
General Assembly drew the district lines for the
purpose of diluting Plaintiffs’ voting strength." (Id.
at 25a.) More importantly, the court determined
that Appellants "failed to prove a discriminatory
effect." (Id. at 26a.) The court also found that
although Dr. McDonald "asserted that certain
districts in the plans contain a higher BVAP than
necessary to elect a representative of choice . . . that
does not demonstrate dilution" because Dr.
McDonald failed to "provide any testimony about the
relative voting strength of the allegedly packed
African-American voters if they had been placed in
another district." (Id.) Additionally, the court
concluded that, "[a]lthough [Appellants] offered
alternative plans, they did not provide any analysis
or explanation demonstrating how their plans show
that the House and Congressional plans dilute
minority votes ... [or] ... minimized or cancel~ out
minority voting potential." (Id.) At bottom, the
court held that Appellants failed to prove that race
was the predominant factor in creating the House
and Congressional plans.
Finally, with respect to standing, the court
relied on United States v. Hays, 515 U.S. 737 (1995),
to hold that Appellants "failed to introduce specific
evidence that they have personally been subjected to
a racial classification." (Id. at 8a.) Therefore, in
15
assessing the evidence as it related to Appellants’
Fourteenth Amendment racial gerrymandering
claim, the court considered "only those districts in
which a Plaintiff resides," (id.) effectively dismissing
the Fourteenth Amendment claims by those
plaintiffs who did not reside in a challenged district
for lack of standing.
ARGUMENT
The questions presented by Appellants are the
same as those that have been addressed and
answered by the Court in numerous redistricting
decisions over the years. No different result is
warranted here. Although the issues have been
presented and decided in other cases, Appellants’
argument that any use of race as a factor requires
shifting the burden of proof appears in the present
case for the first time on appeal to this Court.
Appellants never presented that argument to the
district court and their failure to do so precludes
their raising it on appeal to this Court.
The putative argument is that when race is a
factor in developing a redistricting plan, the State
must justify its use by proving either the absence of
discrimination in crafting the plan or presence of a
compelling interest justifying any discriminatory
effect. This "race is a factor" argument is erroneous,
and the burden clearly is not shifted to Respondents
in this case. As correctly noted by the district court,
a redistricting scheme will be subjected to strict
scrutiny and the burden shifted to the State to prove
that the plan is narrowly tailored to achieve a
compelling governmental interest only when a
16
plaintiff proves that the legislature subordinated
traditional race-neutral principles in favor of using
race as the primary consideration for drawing lines.
(See Appellants’ App. A, pp. 7a); Easley v. Cromartie,
532 U.S. 234, 241 (2001); Miller v. Johnson, 515 U.S.
900, 920 (1995). The court correctly found that
Appellants failed to present any evidence either that
race predominated over traditional redistricting
criteria in the plans, or that the General Assembly’s
redistricting efforts were discriminatory or had the
purpose or effect of diluting minority voting
strength. Even so, the court recognized that, in
crafting a statewide redistricting plan, compliance
with Section 2 of the VRA, including Bartlett v.
Strickland, 556 U.S. 1 (2009), is a compelling state
interest,s
Appellants also ask this Court to reverse a
substantial body of case law in order to grant
Appellants standing to assert a statewide racial
gerrymandering claim, as opposed to the specific
districts in which they reside. Appellants made no
showing that they personally were denied equal
protection of the laws, but only asserted the exact
Although Plaintiffs’ jurisdictional statement
generically claims that "biracial coalitions of whites and blacks
elected minority-preferred black candidates between 2003 and
2010," (J.S. 4), as discussed above, Appellants have limited the
issues to be considered by this Court to a Fourteenth
Amendment racial gerrymandering claim and standing.
Therefore, Appellants have abandoned any claim that
Respondents either impermissibly destroyed or failed to create
coalition districts. Notwithstanding, although Appellants
expressly avoid any discussion of Bartlett in their Jurisdictional
Statement, Respondents’ efforts to comply with the
requirements of Section 2 remain relevant because they operate
to reject Appellants’ other surviving claims.
17
same generalized grievance addressed by this Court
in United States v. Hays, 515 U.S. 737 (1995).
Accordingly, the district court determined that
Appellants have failed to introduce specific evidence
that they were personally subjected to a racial
classification and appropriately declined to consider
racial gerrymandering claims against districts in
which a plaintiff did not reside.
In sum, this Court’s prior holdings directly
foreclose each of Appellants’ claims and Appellants
have not presented adequate or compelling grounds
for this Court to revisit these issues. Instead,
Appellants failed to make the requisite evidentiary
showing below and merely implore this Court for
another bite at the apple. Because Appellants failed
to both meet their burden below and cannot
demonstrate any error of the decision reached by the
three-judge panel, this matter should be dismissed
or, in the alternative, the judgment below should be
affirmed.
Aside From Being Procedurally Barred,
Appellants’ Fourteenth Amendment
Claims Fail as a Matter of Law and are
Unsupported by the Record.
Appellants argue that "[t]he lower court
misunderstood this Court’s ’predominant factor’ line
of cases" (J.S. 24), and assert that race can be a
factor in redistricting only when the VRA explicitly
requires it. (J.S. 17-18.) This argument fails for
several reasons. First, Appellants never presented
this issue to the district court, instead relying upon
the argument that race was the predominant factor.
18
Second, Appellants employ the wrong test and
misstate the level of proof required in a Fourteenth
Amendment gerrymandering case to shift the
burden to the defendants. Third, Appellants
attempt to weave in arguments and standards
related to vote dilution and other discrimination
claims even when the only claim before this Court is
specifically limited to racial gerrymandering.
Fourth, as recognized by the court below, Appellants’
racial gerrymandering claims necessarily fail
because Appellants neither presented specific
evidence that demonstrated they were personally
subjected to a racial classification, nor established
that race was the predominant factor in either the
House or Congressional redistricting plans.
(Appellants’ App. 4a-19a.) Similarly, the court
rejected Appellants’ vote-dilution claims because
Appellants were unable to prove either a
discriminatory purpose or discriminatory effect. (Id.
at 23a). Therefore, regardless of what level of proof
is actually required to invoke strict scrutiny,
Appellants fail to demonstrate how the evidence they
actually introduced at the trial was sufficient to shift
the burden.
Appellants did not raise the "race
is a factor" argument below.
Appellants argue for the first time on appeal
that the presence of race as a factor--not the
predominant factor--shifts the burden of proof to the
State. Appellants did not raise that issue in the
Amended Complaint. (Resp’ts’ App. p. 179a, ¶ 2)
(complaining about "race-based redistricting
schemes that use race as the predominant factor in
19
drawing election district boundaries.") The court
only analyzed the issues based on the allegations
actually made--that the General Assembly used race
as the predominant factor in drawing the plans, (See
J.S. pp. 8a-19a (discussing Plaintiffs’ failure to prove
race was the predominant factor in the legislature’s
districting decisions))--and the existing precedent of
this Court. Appellants’ argument should not be
considered by this Court. E.g., Gonzales v. DuenasAlvarez, 549 U.S. 183, 194 (2007) ("[T]he lower court
did not consider the claims, and we decline to reach
them in the first instance."); Nat’l Collegiate Athletic
Ass’n v. Smith, 525 U.S. 459, 470 (1999) ("[W]e do
not decide in the first instance issues not decided
below.").
Appellants misstate their burden of
proof.
As recognized by the district court, a party
challenging election redistricting can bring two types
of Fourteenth Amendment equal protection claims:
(1) a racial gerrymandering claim, or (2) a vote
dilution claim. (Appellants’ App. A, p. 5a.)
"Whereas a vote dilution claim alleges that the State
has enacted a particular voting scheme as a
purposeful device to minimize or cancel out the
voting potential of racial or ethnic minorities, an
action disadvantaging voters of a particular race, the
essence of the equal protection claim recognized in
Shaw is that the State has used race as a basis for
separating voters into districts." Miller, 515 U.S. at
911 (internal quotations and citations omitted).
20
To establish a gerrymandering claim under
the Equal Protection Clause, a plaintiff has the high
burden of proving that the legislature’s motive "was
predominantly racial, not political," Easley v.
Cromartie, 532 U.S. 234, 241 (2001), and is
"unexplainable on grounds other than race." Shaw,
509 U.S. at 643 (quoting Village of Arlington Heights
v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)).
Additionally, a plaintiff also is always required to
prove that the legislature subordinated traditional
race-neutral principles, such as compactness,
contiguity, maintaining cores of districts, and
respect for political subdivisions or communities of
interest, to race when drawing district boundaries.
See Bush v. Vera, 517 U.S. 952, 959 (1996).
However, "[w]here these or otherrace-neutral
considerations are the basis for
redistricting
legislation, and are not subordinated to race, a state
can defeat a claim that a district has been
gerrymandered on racial lines." Miller, 515 at 91516. Therefore, a racial gerrymandering claim
requires proof that the legislature used race as the
predominant factor in drawing election districts and
subordinated traditional race-neutral principles to
race as the primary consideration for drawing
district lines. (Id. at 915.)
In contrast, the "essence of a vote dilution
claim under the Fourteenth Amendment is that the
State has enacted a particular voting scheme as a
purposeful device to minimize or cancel out the
voting potential of racial or ethnic minorities."
(Appellants’ App. A, p. 23a) (citing Miller, 515 U.S.
at 911) (internal citations and quotations omitted).
A vote dilution claim requires evidence of both a
21
discriminatory purpose on the part of the legislature
enacting the plan and a discriminatory effect on the
racial minority’s voting potential. Washington v.
Finlay, 664 F.2d 913, 920 (4th Cir. 1981).
With these requirements in mind, the district
court correctly used the test set forth in Miller for
Fourteenth Amendment gerrymandering claims:
only when a plaintiff shows, "either through
circumstantial evidence of a district’s shape and
demographics or more direct evidence going to
legislative purpose, that race was the predominant
factor motivating the legislature’s decision to place a
significant number of voters within or without a
particular district," will the State be required to
"demonstrate that its districting legislation is
narrowly tailored to achieve a compelling interest.
Miller, 515 U.S. at 916, 920. (See also, Appellants’
App. A, p. 6a.)
However, Appellants support their novel
standard that using race as a factor shifts the
burden to the state by conflating standards and
cases that are relevant to vote dilution cases or other
race-based claims with those pertaining to
Fourteenth Amendment equal protection claims
generally, and to their gerrymandering claim
specifically. Consequently, they incorrectly reach
the conclusion that if race is a factor in a
redistricting plan, it is necessarily discriminatory
and the burden then shifts to the state to prove that
its consideration of race was for a remedial
justification or that the plan has a race-neutral
purpose. In order to do so, Appellants rely heavily
on this Court’s opinions in Village of Arlington
22
Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252 (1977) ("Arlington Heights") and Mt.
Healthy City School District Board of Education v.
Doyle, 429 U.S. 274 (1977) ("Mt. Healthy") to support
their contention that the district court used the
wrong standard. These vote dilution cases do not
support Appellants’ arguments; however, and
Appellants never articulate why those cases should
apply to the facts of this case instead of the carefully
outlined and repeatedly cited "predominant factor"
test used in gerrymandering cases.
For example, in Arlington Heights, this Court
held that in order to establish a Fourteenth
Amendment violation; a plaintiff need not prove that
the challenged action was motivated solely by a
purpose to discriminate. Under the principles of Mt.
Healthy (decided the same day as Arlington Heights),
if a plaintiff is able to show that a discriminatory
purpose was a motivating factor in the redistricting
process, the burden shifts to the defendant to
demonstrate that the same redistricting would have
occurred even if a discriminatory purpose had not
motivated the defendant. Mt. Healthy, 429 U.S. at
287° Thus, the Arlington Heights/Mt. Healthy
framework involves the following analytical steps
when evaluating a vote dilution claim. First, a
plaintiff must establish a prima facie case of
purposeful vote dilution. Arlington Heights, 429
U.S. at 265-66. Second, assuming a plaintiff can
make such a showing, the burden shifts to the
defendant to establish that the redistricting in
question would have occurred even absent the
alleged purpose to dilute minority voting strength.
Id. at 271 n.21 ("Proof that the decision by the
23
[defendant] was motivated in part by a racially
discriminatory purpose would not necessarily have
required invalidation of the challenged decision.
Such proof would, however, have shifted to the
[defendant] the burden of establishing that the same
decision would have resulted even had the
impermissible purpose not been considered.").
These cases are inapplicable because they are
confined to vote dilution claims, which are not
present in the pending case. Moreover, under the
Court’s framework, the burden does not shift unless
and until it is shown that a decision was motivated
at least in part by a racially discriminatory purpose.
In the present case, Appellants failed to show that
race was the "dominant," "primary," or even a
"motivating" factor. Thus, even assuming arguendo
that the vote dilution burden shifting standard is
applicable to Appellants’ gerrymandering claims in
this case, Appellants have failed to meet the
standard discussed above.
Appellants’ convoluted proposal also ignores
this Court’s acknowledgement that "[r]edistricting
legislatures will almost always be aware of racial
demographics; but it does not follow that race
predominates in the redistricting process." Miller,
515 U.S. at 916 (emphasis added). In fact,
"redistricting differs from other kinds
of state
decisionmaking in that the legislature
always is
aware of race when it draws district lines, just as it
is aware of age, economic status, religious and
political persuasion, and a variety of other
demographic factors." Shaw, 509 U.S. at 646.
However, "[t]hat sort of race consciousness does not
24
lead
inevitably to
impermissible race
discrimination."9 Id.
Consequently, "[s]trict
scrutiny does not apply merely because redistricting
is performed with consciousness of race." Vera, 517
U.S. at 965. Instead, a racial gerrymandering equal
protection violation exists only when the evidence
establishes that "traditional redistricting principles
have been subordinated to race," and strict scrutiny
applies only when race is the "dominant and
controlling" consideration in drawing district lines.10
Miller, 515 U.S. at 913, 916. Only after a plaintiff
has established that race was the predominant
factor in drafting a redistricting plan will strict
scrutiny apply and require the state to show that the
redistricting plan at issue is narrowly tailored to
meet a compelling governmental interest. Id. at 920.
Appellants never met this threshold requirement.
9 Appellants argue that race can be a factor in
redistricting only when the V-RA explicitly requires it, and if
race is otherwise used as even a consideration, the burden
shifts to the defendants to justify its use. (J.S. 17-18.)
However, because South Carolina is required under Section 5 of
the VRA to submit its reapportionment plans to the DOJ for
preclearance; thus, race always must be considered in an effort
to avoid retrogression. Consideration of race does not equate to
a conclusion that race predominated merely because the
legislature had an awareness of race. Miller, 515 U.S. at 916.
10 If the threshold was to show only that race was "a
factor," there would be no purpose served by the Court’s rulings
about race being a "predominant factor." This Court stated in
EasIey v. Cromartie that "It[ace must not simply have been a
motivation . . but the predominant factor motivating the
legislature’s districting decision." 532 U.S. 234, 241 (2001)
(internal citations omitted). This predominant factor discussion
would be meaningless if a plaintiff only had to show race was a
factor.
25
As a covered jurisdiction under the VRA, "It]he
General Assembly had to consider race to create
districts that complied with federal law .... ,’11
(Appellants’ App. A., pp. 18a-19a.) However, the
court was "satisfied that the General Assembly did
not overly rely on race in a manner that runs afoul of
the Fourteenth Amendment." (Id.) Appellants failed
to demonstrate intentional discrimination on the
part of the General Assembly or otherwise
demonstrate that race predominated in the drawing
of the House plan. See Miller, 515 U.S. at 915
("Although race-based decision-making is inherently
suspect, until a claimant makes a showing sufficient
to support that allegation the good faith of a state
legislature must be presumed.")
Appellants’ reasoning fails to recognizes "the
complex interplay of forces that enter a legislature’s
redistricting calculus," and that "the distinction
between being aware of racial considerations and
being motivated by them may be difficult to make."
Id. at 915-16. Under Appellants’ theory, plaintiffs
merely would need to allege that race was a factor
considered by the State--which it always is--in
order to shift the burden to the state to prove that
race was used for a remedial purpose or that the
plan has a race-neutral purpose. The burden of
proof would never lie with the claimant and states
would face the burden of having to defend almost
n The South Carolina House specifically adopted
guidelines and criteria that required compliance with United
States Supreme Court decisions and the VRA. (Appellants’
App. A, p. 9a.) Although Appellants alleged that the General
A~sembly improperly engaged in "packing" certain districts,
contending that they should have been maintained as crossover
districts, Appellants have abandoned this issue on appeal.
26
every redistricting action, even if the plaintiff
produces nothing more than bare allegations.
Appellants’ claims of error are incorrect as a matter
of law, unreasonable and unworkable in their
proposed application and therefore, do not bear
consideration by this Court.
C.
Appellants failed to demonstrate
race was the predominant factor.
Appellants failed to present any evidence that
would support their Fourteenth Amendment racial
gerrymandering claims. As the district court noted,
"Plaintiffs may prove that race was the predominant
consideration in a variety of ways," including
offering circumstantial evidence of a district’s shape
and demographics. (Appellants’ App. A, p. 6a.) For
example, Appellants could have shown that the
redistricting plans were "so extremely irregular on
[their] face that [the plans] rationally can be viewed
only as an effort to segregate the races for purposes
of voting." Vera, 517 U.S. at 958 (internal quotations
and citations omitted). Alternatively, they could
have offered direct evidence of a discriminatory
legislative purpose. Miller, 515 U.S. at 916.12
Instead, Appellants did neither.
The record is devoid of any evidence
demonstrating race predominated in the
12 Appellants claim that because this is a "mixedmotive" case, a different standard should apply. (J.S. 24.)
Even if this is a "mixed motive" case, the Miller~Shaw
framework still applies. See Vera, 517 U.S. at 958-59.
27
redistricting process.13 At most, Appellants’
evidence shows that race was merely a factor
considered by the General Assembly during the
redistricting process, which, in a Fourteenth
Amendment racial gerrymandering claim, is
insufficient to shift the burden to the state to defend
the plan.
At trial, Appellants relied primarily on the
testimony of Representative Sellers and Dr.
McDonald’s review of the geographic and
demographic data of the plan to argue that race was
the predominant factor. The record reflects,
however, that race was but one factor considered
along with many other traditional redistricting
principles. The district court was unconvinced by
Appellants’ evidence and concluded that Appellants
had failed to show that the legislature subordinated
traditional race-neutral redistricting principles to
race; or that the redrawn lines were so bizarre that
the only explanation for their boundaries are racial
considerations; or that there was a legislative
purpose to consider race as the predominant factor.
1.
Representative Sellers and
other legislators.
The district court held Appellants’ evidence
failed to prove that race was the predominant factor
13 Appellants presented no objection to the court’s
abbreviated trial scheduling order, representing to the court,
"[w]e’re not complaining. We think it’s necessary." (Resp’ts’
App. p. 122a.) Appellants were also "more than happy" to
conduct a trial largely consisting of affidavit testimony. (Id. at
123~124.)
28
considered by the General Assembly in drawing the
district lines. Appellants relied on affidavits of
several legislators and oral testimony from
Representative Sellers to show that the legislature
had an intentional discriminatory purpose. The
affidavits did "not offer any convincing proof’ that a
focus on race by the legislature was the predominant
reason for the elevated BVAP. (Appellants’ App. A,
p. 15a.)
Representative Sellers initially insisted race
was the "predominant", if not "the only factor"
considered by the General Assembly in the
redistricting process. (Id. at 16a.) Representative
Sellers’ testimony was dismantled on crossexamination when he was unable to identify any
district that was not contiguous or compact, and
conceded that all communities of interest were
addressed and difficult but reasonable efforts were
made to ensure that incumbent legislators remained
in their current districts. (Resp’ts’ App. pp. 36a-39a,
43a, 45a-47a.) Representative Sellers further
testified that the districting plans complied with the
United States Constitution, the VRA, and population
criteria (Id. at 28a, 30a, 31a.) In fact,
Representative Sellers commended the election law
subcommittee for its efforts to take public input into
account and for "making sure that the process was
sound." (Id. at 50a.)
2.
Dr. McDonald.
Dr. McDonald also testified race was a
predominant factor in the drawing of the district
lines, but admitted he failed to consider a great deal
29
of the relevant information available to him. In
developing his analysis as to whether districts "were
packed," Dr. McDonald failed to consider the
complete House record of the redistricting process,
(Resp’ts’ App. p. 4a), the audio tapes of the election
law subcommittee, newspaper articles, (Id. at 5a-6a),
the pre-existing precinct lines, or the General
Assembly’s redistricting guidelines and criteria
adopted and followed by the House in developing its
plan. (Id. at 7a-12a.)14
Dr. McDonald did not present an alternative
plan that would maintain core constituencies better
than the House plan. (Id. at 14a.) He testified the
plan passed by the House keeps more counties whole
than would the Appellants’ plan. (Id. at 16a-17a.)
He conceded the House plan made communities of
interest whole without considering race as a factor.
(Id. at 13a.) Appellants relied on Dr. McDonald to
attempt to prove that the district shapes in the
redistricting plan were so irregular that race was the
only possible explanation. He only performed a
visual determination of compactness and did not
consider any other pre-existing political subdivision
boundaries. (Id. at 3a, 8a-11a.)
14 Those race-neutral guidelines, set forth in Colleton
County Council v. McConnell, 201 F. Supp. 2d 618 (D.S.C.
2002), include (1) recognizing communities of interest;
(2) preserving the cores of existing districts; (3) respecting
political boundaries; and (4) keeping incumbents’ residences in
districts with their core constituencies. Id. at 647.
30
The court’s estimation of the
evidence.
After considering this evidence, the court
concluded that Appellants "failed to prove any
legislative purpose that indicates race was the
predominant factor." (Appellants’ App. A, p. 15a.)
The court recognized that Representative Sellers’
testimony failed to go beyond general beliefs and did
not contain a specific explanation as to how and
when the legislature as a whole subordinated raceneutral criteria to race in approving the redistricting
plan. (Id. at 17a-18a.) Accordingly, the court found
that Representative Sellers testimony was
"insufficient to show that race predominated in
creating the House and Congressional plans." (Id. at
17a.)
Furthermore, the district court found that Dr.
McDonald, who considered only demographics and
geography data, "was unable to provide the Court a
reliable opinion that the General Assembly
subordinated traditional race-neutral principles to
race." (Id. at 14a.) The court recognized that the
South Carolina House of Representatives proposed,
debated, and adopted guidelines and criteria to be
used in redistricting the Congressional and House
districts. (Id. at 15a-18a.) The House considered not
only the Redistricting Plans’ compliance with the
United States Constitution and the VRA, but also
achieving equal population for the districts,
contiguity, compactness, maintenance of
communities of interest, and incumbency protection.
31
After considering this evidence, the district
court concluded that Appellants "failed to prove any
legislative purpose that indicates race was the
predominant factor." (Id. at 15a.) The court also
determined that Appellants "failed to prove
[or] demonstrated
intentional discrimination
that the General Assembly intended to pack AfricanAmerican voters into districts to prevent the creation
of crossover districts. (Id. at 23a.) Instead, the
district court found that Respondents’ race-neutral
explanations of county lines, existing district
boundaries, and census bloc lines were more
convincing evidence. (Id. at 15a-18a.)
Because Appellants never presented sufficient
evidence to demonstrate that race predominated
over race-neutral redistricting criteria, they failed to
meet their burden of proof.
4.
Summary.
The district court analyzed each specific item
of evidence offered by the Appellants and explained
its reasons for finding that the evidence presented
was insufficient to meet the burden of proof. Just as
they did in the trial, Appellants again fail in their
Jurisdictional Statement to explain how the evidence
they offered is sufficient to prove that the General
Assembly improperly considered race in drawing and
adopting the redistricting plan.
32
II.
Plaintiffs Lack Standing Under United
States v. Hays.
Appellants’ entire standing argument hinges
upon a mistaken reading of this Court’s racial
gerrymandering decisions. This Court has held that
"a district
created solely to effectuate the
perceived common interests of one racial group"
renders it more likely that officials elected from that
district will "believe that their primary obligation is
to represent only the members of that group, rather
than their constituency as a whole.’’15 Shaw, 509
U.S. at 643. Thus, a racially gerrymandered district
may cause resident voters to "suffer . . . special
representational harms" as a result of the wrongful
racial classification. United States v. Hays, 515 U.S.
737, 744-45 (1995). In contrast, voters who do not
reside in a racially gerrymandered district do not
individually suffer these same "representational
harms" and may not raise a racial gerrymandering
claim absent specific evidence showing that they
have "personally been subjected to a racial
classification.’’1~ Id. at 745. This is true even if the
voter resides in a district directly adjacent to the
allegedly gerrymandered district. Id. at 746; see also
Sinkfield v. Kelley, 531 U.S. 28, 30-31 (2000) (per
curiam) (rejecting argument that allegedly
"unconstitutional use of race in drawing the
15 The determination of the district court panel with
respect to standing concerned only Appellants’
racial
gerrymandering claims, not their vote dilution claims.
16 A racial gerrymandering challenge brought against
a district in which the voter does not reside is "only a
generalized grievance against government conduct of which he
or she does not approve." Hays, 515 U.S. at 745.
33
boundaries of majority-minority districts necessarily
involves an unconstitutional use of race in drawing
the boundaries of neighboring majority-white
districts"). Simply put, voters have standing to
challenge a district as racially gerrymandered only if
they reside in that district because they otherwise
have not suffered the necessary individualized
representational harm. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992).
Notwithstanding this Court’s precedent and
the underlying analysis of these decisions--correctly
applied by the district court--Appellants challenge
numerous districts across the state as being racially
gerrymandered, including specific challenges to
districts in which none of them resides. To avoid the
standing requirements of Hays, Appellants
characterize their alleged injury as "being subjected
to a state-wide system of racially segregated
districts, not the "representational harm,"
identified in Hays." (J.S. 29 (emphasis added).)
But Appellants actually did not challenge every
district as racially gerrymandered, only certain
ones.17 Moreover, in Hays, this Court rejected the
claim that challenging districting legislation as a
whole confers standing on a plaintiff to bring a
statewide racial gerrymandering claim, holding
instead that even if redistricting legislation allegedly
injures some voters through race-based
classification, that does not mean "that every . . .
voter has standing to challenge [the plan] as a racial
17 Appellants challenged as racially gerrymandered
House districts 12, 23, 25, 49, 55, 61, 64, 66, 70, 79, 82, 93, 102,
103, 111, 121, and 122 and Congressional district 6.
34
classification." Hays, 515 U.S. at 746. Appellants’
reference to this Court’s partisan gerrymandering
cases provides no support for their argument
because statewide political gerrymandering claims
are non-justiciable. Vieth v. Jubelirer, 541 U.S. 267,
292 (2004).is This holding is consistent with Hays
because the same representational harm is at issue
in both partisan and racial gerrymandering cases.
Id. at 308 (emphasis added); see also id. at 317
(Kennedy,
J.,
concurring)
(discussing
representational rights); id. at 330 (Stevens, J.,
dissenting) (same).; see also League of United Latin
Am. Citizens v. Perry, 548 U.S. 399, 418 (2006)
(Kennedy, J., separate opinion) (rejecting plaintiffs
theory because it did not "show the burden, as
measured by a reliable standard, on the
complainant’s representational rights").19 For all
these reasons, Appellants’ contention that their
"residence in a specific district is immaterial to
standing," (J.S. 30), is incorrect and the district court
correctly ruled that the plaintiffs had standing to
is Although four members of the Court in Vieth applied
a political-question analysis to reject adjudication of any
gerrymandering claims, including statewide ones, Justice
Stevens’ dissent applied the standing analysis of Hays to
conclude that plaintiffs must reside in a district to challenge it
as gerrymandered, regardless of whether the challenge is racial
or political in nature. Vieth, 541 U.S. at 328 (Stevens, J.,
dissenting).
19 Appellants assert that "the state’s own expert
suggested" that the "General Assembly used race as a proxy for
party affiliation." (J.S.p. 21.) Dr. Brunell made the common
sense point recognized in Easley v. Cromartie, 532 U.S. 234
(2001) that where race and politics correlate and a districting
decision has both a racial and a political effect, one cannot
assume that the decision was racially motivated.
35
challenge as racially gerrymandered only those
districts in which at least one of them resided.
Appellants finally contend that even if Hays
applies to restrict their standing to districts of
residence, they should have been permitted to
introduce evidence regarding the legislature’s
allegedly "racially discriminatory purpose regarding
all districts in South Carolina [as] relevant
circumstantial evidence." (J.S. 31.) There are two
primary problems with this assertion. First,
Appellants introduced evidence by stipulation
regarding all of the districts that they alleged to be
racially gerrymandered and there is no reason to
believe that the district court did not consider that
evidence. The court recognized the testimony
presented by one representative "strongly suggested
that race was a factor in drawing many districts
lines," although the court correctly concluded that
the testimony "failed to demonstrate that race
predominated over traditional race neutral
principles in the districts in which Plaintiffs’ reside."
(Appellants’ App. A, p. 18a.) The court did state
that, "in assessing Plaintiffs’ evidence as it related to
their Fourteenth Amendment racial gerrymandering
claim, the Court will consider only those districts in
which a Plaintiff resides." (Id. at 8a.) However, this
statement reflects the district court’s accurate
determination that it could adjudicate plaintiffs’
racial gerrymandering claims only with respect to
the districts in which one of them resided, rather
than an acknowledgement that the court did not
evaluate evidence pertaining to other districts. In
short, Appellants’ argument amounts to a complaint
36
that the district court must not have considered all
of their evidence because it did not agree with them.
Nonetheless, even assuming, arguendo, that
Appellants’ evidence about non-resident districts
was not considered, the district court did not err.
This Court has held that allegations about one
allegedly racially gerrymandered district do "not
prove anything" with respect to a neighboring
district. Sinkfield, 531 U.S. at 30-31 (quoting Hays,
515 U.S. at 746). If Appellants cannot prove a racial
gerrymandering claim based on allegations about
districts directly adjacent to their districts of
residence, they certainly cannot prove that claim
based on allegations about non-adjacent districts
which, in some cases, are on the other side of the
state. Appellants’ citation to Keyes v. School Dist.
No. 1, Denver, 413 U.S. 189 (1973), does not save
their argument because--aside from the fact that
the case does not involve redistricting--the Court
held that a finding of intentional discrimination in
one area of a school district is probative of "the
school authorities’ intent with respect to other parts
of the same school system." Keyes, 413 U.S. at 207
(emphasis added). By its plain language, the Court’s
holding is that evidence about one school district is
not probative of discrimination in a different school
district, which is completely contrary to the
extension suggested by the Appellants in order to
substantiate their arguments. Contrary to
Appellants’ arguments, Keyes therefore supports the
analytical framework established by Sinkfield and
Hays. Sinkfield, 531 U.S. at 30-31; Hays, 515 U.S. at
746.
37
Under any view of the proceedings below,
Appellants are not entitled to relief on the basis that
they had standing to challenge the statewide
redistricting plan as a whole. The decision of the
district court should be summarily affirmed and
Appellants’ appeal should be dismissed.
CONCLUSION
For the reasons set forth above, this Court
should dismiss this appeal or summarily affirm the
decision of the district court below.
Respectfully submitted,
Robert E. Stepp
Counsel of Record
Robert E. Tyson, Jr.
SOWELL GRAY
STEPP & LAFFITTE, LLC
1310 Gadsden Street
Post Office Box 11449
Columbia, South Carolina 29201
803.929.1400
rstepp@sowellgray.com
--and--
38
Benjamin P. Mustian
Tracey C. Green
WILLOUGHBY & HOEFER, P.A.
930 Richland Street
Post Office Box 8416
Columbia, South Carolina 29202
803.252.3300
July 20, 2012