~ Supr~’~ Court, U.S. ~
FILED
INTHE
up en e
of tile l lnil l
I~~F
!
r.e
COURT, IJ.~._~
VANDROTH BACKUS, WILLIE HARRISON BROWN,
CHARLESANN BUTTONE, BOOKER IV~ANIGAULT,
EDWARD MCKNIGHT, MOSES Mn~is, JR.,
ROOSEVELT WALLACE, and WILL~_M G. WILDER,
on behalf of themselves and all other
similarly situated persons,
Appellants,
V.
THE STATE OF SOUTH CAROLINA, NIKK~ R. HALE¥,
in her capacity as Governor, JOHN E. COURSON, in his
capacity as President Pro Tempore of the Senate,
ROBERT W. HARRELL, JR., in his capacity as Speaker
of the House of Representatives; MARCI ANDINO, in
her capacity as Executive Director of the Election
Commission, JOHN H. HUDGENS, III, Chairman,
NICOLE S. WHITE, MARILYN BOWERS, MARK BENSON,
and THOMAS WARING, in their capacity as
Commissioners of the Election Commission,
Respondents.
On Appeal from a Three-Judge
United States District Court
in the District of South Carolina
JURISDICTIONAL STATEMENT
RICHARD A. HARPOOTLIAN
Counsel of Record
RICHARD A. HARPOOTLIAN, P.A.
1410 Laurel Street
Columbia, SC 29201
(803) 252-4848
rah@harpootlianlaw.com
June 6, 2014
WlLSON-EPES PRINTING CO., INC. - (202) 789-0096 - WASHINGTON, D. C. 20002
QUESTIONS PRESENTED
Appellants filed suit alleging the South Carolina
legislature violated equal protection by drawing racebased election districts that exceeded the requirements of § 5 of the Voting Rights Act (VRA). The
case was tried to a three-judge court, which found
that the state legislature did--in fact--use race to
draw election districts, but that federal law required
this racial classification.
In Shelby County, Alabama v. Holder, 133 S. Ct.
2612 (2013), this Court held that in its 2006 reauthorization of the VRA, Congress failed to justify
the continued application of § 5 in light of present
circumstances. Appellants moved the district court
for relief from its judgment, asking it to consider
whether the legislature’s racial classification could
withstand strict scrutiny. That motion was denied.
The Questions Presented Are:
1. Whether deliberate racial gerrymandering
after the 2010 Census must be justified by a
compelling state interest in the absence of
§ 5’s remedial districting mandate?
2. Whether post-judgment relief is warranted to
examine a racial classification that likely fails
strict scrutiny but, if left unexamined, will
define the state’s democratic institutions for
the remainder of this decade and into the
next?
(i)
BLANK PAGE
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ...............................
i
TABLE OF AUTHORITIES ................................ vi
JURISDICTIONAL STATEMENT ..................... 1
OPINION BELOW .............................................. 1
JURISDICTION .................................................. 2
CONSTITUTIONAL PROVISIONS, STATUTES,
AND RULES INVOLVED ................................... 2
INTRODUCTION ................................................ 2
STATEMENT OF THE CASE ............................ 7
1.
Bi-racial coalitions naturally emerge
under the "benchmark" plan ....................
8
10
2.
Race and the 2011 House Redistricting...
3.
Administrative preclearance .................... 14
4.
Trial before the Three-Judge Court .........
5.
Judgment and Appeal ............................... 19
6.
Appellants’ Rule 60(b) motion .................. 20
16
ARGUMENT ........................................................21
I. The three-judge court’s failure to
recognize that § 5 was not legally in
effect in 2011 leaves in place a racial
gerrymander never subjected to strict
scrutiny ..................................................... 21
A. Shelby County is a change in
substantive law .................................... 21
(iii)
iv
TABLE OF CONTENTSuContinued
Page
B. Act 72 cannot be justified by the
predominant-factor doctrine and
must be subjected to strict scrutiny .... 25
II. The monumental change in law
announced in Shelby County merits
post-judgment relief. ................................. 28
A. The district court failed to consider
the prospective effect of Act 72 and
its impact on South Carolina voters ...
30
B. The district court failed to consider
whether, if Appellants’ substantive
theory is correct, this case gives rise
to an equal protection violation and
whether that would constitute an
exceptional circumstance warranting
relief ..................................................... 33
CONCLUSION .................................................... 36
APPENDIX
APPENDIX A: ORDER. U.S. District Court
for the District of South Carolina, Columbia
Division (March 10, 2014) ................................ la
APPENDIX B: NOTICE OF APPEAL, U.S.
District Court for the District of South
Carolina, Columbia Division (April 9, 2014)... 14a
APPENDIX C: CERTIFICATE OF SERVICE,
U.S. District Court for the District of South
Carolina, Columbia Division (April 9, 2014)... 16a
APPENDIX D: TRANSCRIPT, Honorable
Bakari Sellers (March 1, 2012, March 2,
2012) ................................................................. 18a
V
TABLE OF CONTENTSwContinued
Page
APPENDIX E: AFFIDAVIT, Honorable
Mia Butler Garrick (February 22, 2012)
(unredacted) ..................................................... 33a
APPENDIX F: AFFIDAVIT, Honorable Mia
Butler Garrick (February 22, 2012)
(redacted) .......................................................... 44a
APPENDIX G: Explanation of Redistricting
Process, 36-37, RWH002043-44 (Exhibit A)... 55a
APPENDIX H: Honorable Robert W. Harrell
Cover Letter to U.S. Department of Justice
(August 9, 2011) ............................................... 58a
APPENDIX I: TRANSCRIPT, Dr. Thomas
L. Brunell (March 2, 2012) .............................. 77a
APPENDIX J: AFFIDAVIT, Honorable
James E. Clyburn (unredacted), (February
14, 2012) ........................................................... 85a
APPENDIX K: AFFIDAVIT, Honorable
James E. Clyburn (redacted), (February 14,
2012) ................................................................. 93a
APPENDIX L: House BVAP Summary
101a
Table .................................................................
APPENDIX M: 42 U.S.C. 1973c ..................... 102a
APPENDIX N: Fed. R. Civ. P. 60 ..................105a
vi
TABLE OF AUTHORITIES
CASES
Page(s)
Ackermann v. United States,
340 U.S. 193 (1950) ...................................... 33, 34
Adarand Constructors, Inc. v. Pend,
515 U.S. 200 (1995) ......................................
25
Agostini v. Felton,
521 U.S. 203 (1997) ...................................... 32, 33
Aikens v. Ingrain,
652 F.3d 496 (4th Cir. 2011) ........................
35
Alabama Legislative Black Caucus
v. Alabama,
2:12-CV-691, 2013 WL 6925681 (M.D. Ala.
Dec. 20, 2013), prob. juris, noted, June 2,
2014 (Case No. 13-895) ............................... .passim
Alabama Democratic Conference
v. Alabama,
2:12-CV-1081, 2013 WL 6925681 (M.D.
Ala. Dec. 20, 2013), prob. juris, noted,
June 2, 2014 (Case No. 13-1138) .............5, 17, 35
Backus v. South Carolina,
857 F. Supp. 2d 553 (D.S.C. 2012),
affd, 133 S. Ct. 156 (Oct. 1, 2012)
(Case No. 11-1404) ..................................... .passim
Barber v. Turberville,
218 F.2d 34 (D.C. Cir. 1954) ........................
29
Beer v. United States,
425 U.S. 130 (1976) ...................................... 22, 23
Bush v. Vera,
517 U.S. 952 (1996) .................................. 5, 25, 27
vii
TABLE OF AUTHORITIES--Continued
Page(s)
City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) ......................................
25
Colleton County Council v. McConnell,
201 F.Supp.2d 618 (D.S.C. 2002) ............... 8, 9, 11
Davila-Alvarez v. Escuela de Medicina
Universidad Cent. del Caribe,
257 F.3d 58 (lst Cir. 2001) ...........................
Dickson v. Rucho,
No. 201PA12-2 (N.C.) ...................................
29
5
Easley v. Cromartie,
532 U.S. 234 (2001) ......................................
28
Fackelman v. Bell,
564 F.2d 734 (5th Cir. 1977) ........................
29
Fisher v. Univ. of Texas at Austin,
133 S. Ct. 2411 (2013) .............................. 4, 21, 25
Georgia v. Ashcroft,
539 U.S. 461 (2003) ...................................... 23, 24
Gonzalez v. Crosby,
545 U.S. 524 (2005) ......................................
29
Graham by Graham v. Wyeth Laboratories,
Div. of Am. Home Products Corp.,
906 F.2d 1399 (10th Cir. 1990) ....................
29
Holliday v. Duo-Fast Maryland Co.,
905 F.2d 1529 (4th Cir. 1990) ......................
29
Hornev. Flores,
557 U.S. 433 (2009) ...................................... 30, 31
Johnson v. De Grandy,
512 U.S. 997 (1994) ................................ 10, 23, 24
viii
TABLE OF AUTHORITIES--Continued
Page(s)
Klapprott v. United States,
335 U.S. 601 (1949) ...................................... 33, 34
League of United Latin Am. Citizens v.
Perry, 548 U.S. 399 (2006) ...........................
3, 7
Liljeberg v. Health Servs. Acquisition Corp.,
486 U.S. 847 (1988) ...................................... 33, 34
McDaniel v. Mehfoud,
702 F. Supp. 588 (E.D. Va. 1988) .................
20
Miller v. Johnson,
515 U.S. 900 (1995) ................................ 16, 26, 27
Mt. Healthy City Sch. Bd. v. Doyle,
429 U.S. 274 (1977) ......................................
28
Nw. Austin Mun. Util. Dist. No. One v.
Holder,
557 U.S. 193 (2009) ...................................... 22, 23
Page v. Virginia State Board of Elections,
Civil Action No. 3:13-cv-678 (E.D. Va.) .......
5
Parents Involved in Community Schools v.
Seattle School Dist. No. 1,
551 U.S. 701 (2007) ...................................... 21, 25
Riley v. Kennedy,
553 U.S. 406 (2008) ......................................
9
Shaw v. Hunt,
517 U.S. 899 (1996) ............................ 3, 26, 27, 28
Shaw v. Reno,
509 U.S. 630 (1993) ......................... 19, 21, 26, 35
Shelby County, Alabama v. Holder,
133 S. Ct. 2612 (2013) ................................ .passim
ix
TABLE OF AUTHORITIES--Continued
Page(s)
Shelby County, Alabama v. Holder,
133 S. Ct. 594 (Nov. 9, 2012) .......................passim
Solaroll Shade and Shutter Corp. v. BioEnergy Sys., Inc., 803 F.2d 1130 (11th Cir.
1986) .............................................................. 29
United Jewish Organizations v. Carey,
430 U.S. 144 (1977) ...................................... 20
United States v. Walus,
616 F.2d 283 (7th Cir. 1980) ........................
Village of Arlington Heights v. Metropolitan
Housing Development Corp.,
429 U.S. 252 (1977) ......................................
29
28
CONSTITUTION
U.S. Const. amend. I .................................... 32
.passim
U.S. Const. amend. XIV .............................
STATUTES
28 U.S.C. § 1253 ...............................................
28 U.S.C. § 2284 ...............................................
2
2
9
28 C.F.R. 51.54(b)(1) ........................................
Voting Rights Act of 1065, Pub. L. No. 89110, 79 Stat. 437, 42 U.S.C. §§ 1973 et seq...passim
§ 2, 79 Stat. 437, 42 U.S.C. 1973 .............5, 22, 24
§ 2(a), 79 Stat. 437, 42 U.S.C. 1973(a) ......... 22
§ 4, 79 Star. 438, 42 U.S.C. 1973b ...............20, 22
§ 4(b), 79 Stat. 438, 42 U.S.C. 1973b(b) ....... 22
X
TABLE OF AUTHORITIESmContinued
Page(s)
§ 5, 79 Star. 439, 42 U.S.C. 1973c ...............passim
§ 5(b), 79 Stat. 439, 42 U.S.C. 1973c(b) .......
23
S.C. Act 55, 2003 S.C. Laws 255 .....................9, 15
.passim
S.C. Act 72, 2011 ............................................
RULES
Fed. R. Civ. P. 60(b) .................................
2, 8, 29, 30
.passim
Fed. R. Cir. P. 60(b)(5) ...................................
.passim
Fed. R. Civ. P. 60(b)(6) ...................................
Fed. R. Evid. 201 .............................................. 31
Fed. R. Evid. 801(d)(2) ..................................... 17
COURT FILINGS
Ala. Mot. Dismiss Aft., Alabama Legislative
Black Caucus v. Alabama, 2:12-CV-691,
2013 WL 6925681 (M.D. Ala. Dec. 20, 2013),
prob. juris, noted, June 2, 2014 (Case No.
13-895) .......................................................... 35
Page v. Virginia State Board of Elections,
Civil Action No. 3:13-cv-678, Compl. (ECF
No. 1) (E.D. Va.) ............................................ 35
OTHER AUTHORITIES
Ari Berman, How the GOP is Resegregating
the South, The Nation, Feb. 20, 2012 ..........
6
Richard H. Pildes, Diffusion of Political
Power and the Voting Rights Act, 24 Harv.
J.L. & Pub. Pol’y 119 (2000) ......................... 35
xi
TABLE OF AUTHORITIES--Continued
Page(s)
S.C State Election Commission, public
records, available at: www.scvotes.sc.gov ...
31
11 Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Fed. Prac. & Proc. Civ.
(3d ed. West 2013) ........................................29, 32
BLANK PAGE
IN T~E
uprem ourt of [nit l
No. 13VANDROTH BACKUS, WILLIE HARRISON BROWN,
CHARLESANN BUTTONE, BOOKER MANIGAULT,
EDWARD MCKNIGHT, MOSES MIMS, JR.,
ROOSEVELT WALLACE, and WILLiaM G. WILDER,
on behalf of themselves and all other
similarly situated persons,
Appellants,
V.
THE STATE OF SOUTH CAROLINA, NIK~ R. HALEY,
in her capacity as Governor, JOHN E. COURSON, in his
capacity as President Pro Tempore of the Senate,
ROBERT W. HARRELL, JR., in his capacity as Speaker
of the House of Representatives; MARCI ANDINO, in
her capacity as Executive Director of the Election
Commission, JoHN H. HUDGENS, III, Chairman,
NICOLE S. WHITE, MARILYN BOWERS, MARK BENSON,
and THOMAS TARING, in their capacity as
Commissioners of the Election Commission,
Respondents.
On Appeal from a Three-Judge
United States District Court
in the District of South Carolina
JURISDICTIONAL STATEMENT
OPINION BELOW
The opinion of the three-judge court (App. at 1a-13a)
is unreported.
2
JURISDICTION
A three-judge court was convened in the District of
South Carolina pursuant to 28 U.S.C. § 2284. The
court entered judgment for the defendants. J. Defs.,
Mar. 9, 2012, ECF No. 215. A timely notice of appeal
was filed. ECF No. 216. This Court summarily
affirmed. ECF No. 221.
Aider this Court handed down its opinion in Shelby
County, Appellants moved the district court to alter or
amend its judgment. Pls.’ Mot., Aug. 29, 2014, ECF
No. 223. The motion was denied. Order, Mar. 10,
2014, ECF No. 239.
The jurisdiction of the Court is invoked pursuant to
28 U.S.C. § 1253.
CONSTITUTIONAL PROVISION, STATUTES,
AND RULES INVOLVED
Relevant constitutional provisions, statutes, and
rules are set forth in App. at 102a-106a.
INTRODUCTION
In Backus v. South Carolina, 857 F. Supp. 2d 553
(D.S.C. 2012), arid, 133 S. Ct. 156 (Oct. 1, 2012),
Appellants argued that Act 72 of 2011--which drew
election districts for the state House of Representatives--employed racial districting in excess of what
was required by the VRA and thus ran afoul of the
Fourteenth Amendment. Appellants assumed that § 5
(42 U.S.C. § 1973c) was constitutionally applied to
covered jurisdictions like South Carolina when the
legislature increased the number of majority-black
districts above the number deemed necessary a decade
earlier. Indeed, the district court’s approval of the
3
State’s black-maximization districting strategy turned
on its view that:
For South Carolina, a covered jurisdiction
under the Voting Rights Act, federal law
requires that race be a consideration. The
General Assembly had to consider race to
create districts that complied with federal
law, which it did.
Backus, 857 F. Supp. 2d at 565 (emphasis added).
On appeal (Case No. 11-1404 (~Backus /")),
Appellants argued the district court failed to recognize
that remedial racial action was unnecessary because
the districts targeted for majority-black status were
already electing African-American candidates. Since
the purpose of the VRA is to ~foster our transformation
to a society that is no longer fixated on race[,]" League
of United Latin Am. Citizens v. Perry, 548 U.S. 399,
433-34 (2006) (~LULAC"), unnecessary racial
districting always runs afoul of equal protection’s
limitation on racial government action. See, e.g., Shaw
v. Hunt, 517 U.S. 899, 909 (1996).
This Court summarily affirmed Appellants’ asapplied challenge, but just one month later granted
certiorari in Shelby County, 133 S. Ct. 594 (Nov. 9,
2012), to decide whether Congress’s reauthorization of
§ 5 violated the Constitution. In striking down the
coverage formula that brought states under § 5’s
preclearance regime, Shelby County nullified the
predicate for racial districting that Appellants, the
State, and the district court all assumed constituted a
compelling justification.
Appellants moved the district court, pursuant to
Fed. R. Civ. P. 60(b)(5)-(6), for relief from its judgment,
seeking reconsideration of the un-contradicted record
4
that the legislature affirmatively employed a racial
districting strategy. After more than five months
under advisement, the three-judge court denied the
motion, without a hearing, and noted its skepticism
that Shelby County marked a dramatic change in law
or that its reasoning had any impact on Appellants’
equal protection claim. See App. at 7a.
The import of the questions presented here far
exceed the impact on South Carolina and her voters.
Courts in other formerly covered jurisdictions have
been asked to give effect to Shelby County’s holding
where those states’ legislatures also employed race to
design election districts after the 2010 Census. Of
course, anytime a government decision even touches
on an individual’s race, he is entitled to judicial review
asking whether ~the burden he is asked to bear on that
basis is precisely tailored to serve a compelling
governmental interest." Fisher v. Univ. of Texas at
Austin, 133 S. Ct. 2411, 2417 (2013). Pre-Shelby
County, most courts concluded or assumed that § 5compliance provided a compelling justification. This
case asks whether equal protection requires a more
searching review of this decade’s redistricting laws
beyond the talismanic invocation of § 5.
So far, the court below and a district court in
Alabama have demurred. See Alabama Legislative
Black Caucus v. Alabama, 2:12-CV-691, 2013 WL
6925681 (M.D. Ala. Dec. 20, 2013), prob. juris, noted,
June 2, 2014 (Case No. 13-895) (hereinafter ~ALBC’);
Alabama Democratic Conference v. Alabama, 2:12CV-1081, 2013 WL 6925681 (M.D. Ala. Dec. 20, 2013),
prob. juris, noted, June 2, 2014 (Case No. 13-1138)
(hereinafter ~ALDC~). A three-judge court in Virginia
has just completed a bench trial and taken the
same question under advisement. See Page v. Virginia
5
State Board of Elections, Civil Action No. 3:13-cv-678
(E.D. Va.).1
Just this week, this Court noted probable
jurisdiction in ALBC and ALDC to consider whether
Alabama’s § 5-districting amounted to a racial quota.
Judge Thompson, dissenting from the Middle District
of Alabama’s decision to uphold that state’s plan,
adopted reasoning equally applicable to South
Carolina and explained despite the "multiplicity of
claims" in that case, the question was "actually quite
simple." ALBC, 2013 WL at *76.
IT]he drafters of these plans labored under
the false belief that § 5 of the [VRA], required
them to adopt for each majority-black district
a particular percentage of black population,
ranging as high as 78.1% black. Therefore,
the drafters sifted residents by race across
the State of Alabama in order to achieve for
each such district, where possible, what I
believe can only be characterized as naked
"racial quotas."
Id. (quoting Bush v. Vera, 517 U.S. 952, 976 (1996)
(plurality opinion)). Judge Thompson concluded--as
Appellants urged the court below--that "when it
comes to racial classifications, the solution offered
must last no longer than the compelling interest on
which the State relies." Id. at "107. Since this Court’s
intervening decision in Shelby County vitiated any
permissible reliance on § 5, the state "asks us to
~ The North Carolina Supreme Court is considering the related
question as to whether a state trial court misapplied strict
scrutiny by deferring to the legislature’s assertion that § 2 of
the VRA required majority-black districts. Dickson v. Rucho, No.
201PA12-2 (N.C.).
6
approve a race-based solution that has not only
already outlived its problem, but also one that will be
in effect into the next decade, through the 2020
census." Id.
In Backus I, Appellants noted a troubling trend
among Republican-dominated legislatures in southern
states citing VRA compliance as cause for districting
plans that packed black voters back into majorityminority districts to minimize their political influence
by destroying bi-racial electoral coalitions and
preventing new ones from emerging.2 As Judge
Thompson opined, while conditions 30 years ago "may
have justified requiring high percentages of black
population" to give black voters an equal opportunity
to participate in political life, "I feel as if I were in a
time warp carried back into the past, with the
arguments being the same but with the [political]
parties having switched sides." ALBC, 2013 WL at
"109.
In this case, the district court considered and
credited un-contradicted legislative testimony that
the legislature’s primary concern when drafting Act 72
was "[r]ace, race, and more race." App. at 31a. The
State admitted as much, citing § 5 as its defense,
and the district court adopted this theory when it
entered judgment. But by refusing to reconsider this
reasoning post-Shelby County, the district court has
merely prolonged the "sordid business [of] divvying us
up by race" for the balance of this decade. See LULAC,
548 U.S. at 511 (Roberts, C.J., concurring in part and
dissenting). Appellants respectfully submit that this
2 Backus I J.S. at 3 n.1 (citing intra alia, Ari Berman, How the
GOP is Resegregating the South, The Nation, Feb. 20, 2012).
7
conclusion denies equal protection and should be
reversed.
STATEMENT OF THE CASE
Following the 2010 Census, the South Carolina
legislature passed Act 72 of 2011 to reapportion the
124-member state House of Representatives. This
plan deliberately increased the number of majorityblack election districts to 30 under the auspices of § 5
and in contravention of strong electoral evidence that
no remedial action was warranted. In nine of these 30
House districts, biracial coalitions of white and black
voters were already electing minority-preferred black
candidates between 2003 and 2010 without a majority
BVAP. Statewide electoral trends similarly reflected
an increasing willingness on the part of white South
Carolina voters to vote for minority-race candidates,
with now-Senator Tim Scott, an African-American
Republican, being elected to Congress in 2010 with
65% of the vote in a nearly 75% white district, and
Barack Obama earning 26% of the white vote in the
2008 presidential election compared to John Kerry’s
22% four years earlier.
But the South Carolina General Assembly’s
adoption of Act 72 intentionally destroyed naturally
evolving bi-racial coalitions by re-segregating voters
through rigid adherence to the Republican majority’s
view of what § 5 required. In upholding Act 72,
the district court explicitly recognized this policy
choice, but nevertheless concluded it was "satisfied
that the General Assembly did not overly rely on race
in a manner that runs afoul of the Fourteenth
Amendment." Backus, 857 F. Supp. 2d at 565
(emphasis added). The question here is whether
Act 72 must withstand strict scrutiny in the absence
8
of § 5, the State’s admitted predicate for racial action.
The district court believed Shelby County provided no
occasion to reconsider this case and that even if it did
Rule 60(b) of the Federal Rules of Civil Procedure
affords no remedy for this constitutional wrong. That
view is mistaken.
1. Bi-racial coalitions naturally emerge under
the "benchmark" plan. To properly understand the
highly racialized nature of Act 72’s districting scheme,
it is important to consider the election districts in
place between 2003 and 2011 and the electoral success
enjoyed by minority-preferred candidates in majoritywhite districts.
In 2001, the General Assembly was unable to
override a gubernatorial veto of the post-2000
redistricting bill. In response to the ensuing political
stalemate, a three-judge federal court issued an
order to correct the malapportionment by drawing
state House districts. Colleton County Council v.
McConnell, 201 F.Supp.2d 618 (D.S.C. 2002). The
court held that the VRA required certain electoral
districts with black voting age population ("BVAP")
percentages sufficient to give black voters an equal
opportunity to elect candidates of their choice and to
avoid a "retrogression" of black voters’ exercise of the
franchise. Id. at 640. Notably, the Colleton County
Court was "careful to narrowly tailor our draw so that
this predominate use of race is limited to the
accomplishment of the purposes of the VRA and no
more." Id.
The court-ordered plan created 29 majority-black
state House districts.3 In 2003, the General Assembly
3 Two of the 29 districts were technically black-plurality
districts with BVAP percentages of less than 50%.
9
slightly modified the House plan, again creating 29
majority-black districts, with BVAPs ranging from
49.8 to 68.9%. See Act 55, 2003 S.C. Laws 255. The
Colleton County court’s plan, as modified by Act 55,
governed House elections from 2003 until 2011. That
plan, as it existed in 2011, serves as the "benchmark
plan" in this litigation. See Riley v. Kennedy, 553 U.S.
406, 421 (2008) (defining the benchmark or "baseline"
plan); see also, 28 C.F.R. 51.54(b)(1).
During this period, eight of the 29 majority-minority
districts created by Act 55 lost their majority-black
status on account of natural demographic shills.4 This
population change was driven by inter and intra-state
migration, such as black residents migrating from
rural counties with historically high BVAP percentages to more populous, integrated urban and
suburban counties. Even with these changes, all 29
districts, including the eight non-majority-black
districts, continued to elect black representatives.
The black candidates running in many of these
districts either faced no competition or won election
overwhelmingly. For example, in Berkeley County,
District 102’s BVAP had decreased from 50.96% to just
43.85% in 2010. Despite a strong showing from
Republicans statewide that year, black Representative
Joe Jefferson handily defeated his white, Republican
opponent 58.54% to 41.44%.5 Minority-preferred
candidates were also elected with the support of white
4 The eight districts are: HD-12, HD-23, HD-49, HD-64, HD102, HD-111, HD-116, and HD-122.
5 In 2004, Rep. Jefferson defeated his white, Republican
opponent 61.31% to 38.46%. He was unopposed in 2006 and 2008.
10
voters in overwhelmingly majority-white districts.6
Most notable in this litigation is District 79, which had
a BVAP of just 34.7% under the benchmark plan but
elected a black candidate in 2006 and 2008, and
another black candidate in 2010.7 Both of these
minority-preferred candidates prevailed over wellfunded, white, Republican challengers. In short, black
voters were "pull[ing] and haul[ing] to find common
political ground with other voters in the district" to
elect candidates of their choice. Johnson v. De Grandy,
512 U.S. 997, 1020, (1994).
2. Race and the 2011 House Redistricting.
Act 72 destroyed these naturally evolving biracial
coalitions. The un-contradicted record below demonstrates that, in every possible instance, the Republican
majority responsible for draining and passing the 2011
redistricting law relied on their view that § 5 of the
VRA mandated electoral re-segregation by maintaining and increasing BVAP percentages in historically
majority-black districts and the creation of new ones
where possible. Act 72 implements this policy in three
ways.
First, Act 72 intentionally maintained or increased
the BVAP of the benchmark plan’s 21 majority-black
districts. In some instances this modestly reduced
the BVAP percentage because rural majority-black
benchmark districts were so under populated that
dramatic racial districting was required to add
~ The South Carolina Senate also saw black candidates succeed
in majority-white districts, including two districts, SD-10 and
SD-29, with 31.9% and 45.8% BVAP, respectively.
7 Anton Gunn was elected in 2006 and reelected in 2008. He
vacated his seat to work for the Obama administration. Mia
Butler-Garrick was elected in 2010.
11
sufficient population to meet the requirement of one
person, one vote while also keeping the BVAP above
50%. Second, Act 72 packed the eight districts that
were no longer majority-black districts under the
benchmark plan by re-drawing these districts with a
BVAP of 50% or greater, notwithstanding the fact that
all eight of these districts were already represented by
black representatives. Finally, Act 72 packed black
voters into District 79 because District 79 was
represented by a black representative. In total, Act 72
created 30 majority-black districts---one more than the
Colleton County Court deemed necessary a decade
earlier and nine more than under the benchmark
plan.8 These decisions cannot be explained by other
means since the legislature had no partisan electoral
performance data before it, but did have, and used,
racial demographic data.
The State’s racial gerrymandering policy was
repeatedly cited during the public debate by
Republican legislative leaders charged with moving
Act 72 through the legislative process and voting
down any amendments that reduced BVAP in
the 30 majority-black districts. The Election Law
Subcommittee was responsible for passing the initial
redistricting plan which then went to the full House
Judiciary Committee and then the House floor.
Rep. Bakari Sellers, one of two black Democrats, along
with three white Republicans, on the House Election
Law Subcommittee, testified at trial that the
Republican leadership "had a hard, fast line, which I
felt was incorrect, that they were not reducing black
voting-age population in any district regardless of how
high it was. It was an attempt to resegregate [voters]."
See House BVAP Summary Table, App. at 101a.
12
App. at 22a. Rep. Sellers noted that the subcommittee
"did not deal with compactness, communities of
interest," nor was it "concerned with public
commentary." App. at 22a. Instead, "when it came to
the implementation the only factor that was used was
race." App. at 22a. For example, Rep. Sellers’ cited
one of his amendments, offered on behalf of the
African-American incumbent, to change the shape of
majority-minority District 102 to better preserve the
district’s constituency. App. at 26a-28a. Rep. Sellers
explained the amendment was a "nonstarter" for the
Republican-controlled Subcommittee because it would
have reduced the BVAP. App. at 28a. None of Rep.
Seller’s testimony was contradicted by any witness.
During Rep. Sellers’ testimony, the district court
heard the Subcommittee Audio Recording discussing
one of Rep. Sellers’ rejected amendments, in which
Republican Subcommittee Chair Alan Clemmons,
explained that "the majority of this Subcommittee has
adopted a policy position that we will not reduce black
voting age population unless population absolutely
demands it." Pls.’ Ex. 66, RWH022017, at 00:48:0000:49:10 (emphasis added). This "hard line" policy was
reiterated in audio recordings from the Full Judiciary
Committee where Chairman James Harrison, another
white Republican, explained that BVAP could not be
reduced by even .8 percent. Pls.’ Ex. 66, RWH022018,
at 05:33:50. Rep. Harrison echoed Rep. Clemmons’
position that, as a matter of policy, the BVAP of
majority-minority districts could not be reduced. For
example, Chairman Harrison led the full committee in
rejecting a proposed amendment because it would
have reduced the BVAP of District 82 "from 52.74 to
51.43," a reduction that was "unacceptable under the
VRA .... " Pls.’ Ex. 66, RWH02018, at 00:25:50-00:26:50
(emphasis added). Rep. Clemmons likewise reiterated
13
he would "vote against any change that would
decrease black voting age population in a majorityminority district." Id. at 00:27:25 (emphasis added).
The Republican majorities in the subcommittee, full
committee, and in the House all followed suit in
enforcing this policy.
Republicans also increased the BVAP of districts
with biracial constituencies that were already electing
minority-preferred black candidates over the
objections of those districts’ African-American
incumbents who sought to preserve existing biracial
coalitions. For example, District 79 elected two
different black representatives over the course of three
different elections even though the district’s BVAP
was just 34.70%. During the redistricting debate,
incumbent Rep. Mia Butler-Garrick objected when
Rep. Clemmons told her of plans to dramatically
increase the black population of her district, insisting,
"we’re working to get [] BVAP up in your District."
App. at 36a. When she appealed to Chairman
Harrison, he explained "he might not have a choice
because ’the lawyers’ were advising him that [making
District 79 majority-black] was probably what they
were going to have to do." App. at 37a. During a
full Judiciary Committee meeting, Rep. Harrison
introduced an amendment redrawing District 79 with
a 52% BVAP. That amendment split Rep. ButlerGarrick’s own neighborhood in order to remove white
voters and add black voters not previously in the
district. App. at 38a. Rep. Butler-Garrick protested:
A majority-minority district is not warranted
because there has been no Section 2 or
performance analysis to support or justify
this so we end up packing District 79 for no
reason. I love the diversity of my District and
14
so do the people of District 79. Even with a
34 percent BVAP, two African Americans
have already won, which is proof that we
neither need nor are we asking for the
additional protection of majority-minority
status.
App. at 39a (emphasis added). Black House members
opposed the plan on final passage with 18 voting
against, five in favor, and four not voting.9
3. Administrative preclearance. After passage
and ratification, Speaker Robert W. Harrell, Jr. submitted Act 72 to the Department of Justice ("DOJ’) for
administrative preclearance. See 42 U.S.C. § 1973c.
This submission expressly cited the districting policy
evidenced by the Republican leadership’s statements
during the public debate, namely, that § 5 required
maintaining and, if possible, increasing the number of
majority-black districts. The State’s preclearance
submission touted not just Act 72’s success in avoiding
retrogression through its adherence to this rule, but
its ability to increase the number of majority-black
districts.
As the State’s official public explanation of the
redistricting process explained:
With respect to the impact of [Act 72] on
minorities, the plan passed by the [House]
complies with Section 5 of the VRA and is
not retrogressive. As compared to the 29
majority-minority districts which existed
following the adoption of the current House
9 Out of comity, the Senate did not pass substantive
amendments to the House plan and vice versa. The final House
vote for passage was 82 in favor, 23 opposed, 16 not-voting
(including the Speaker) and three excused.
15
plan in 2003 and as compared to the 21
districts which existed in the Benchmark
plan following the 2010 Census, [Act 72]
contains 30 districts with majority black
voting age and non-Hispanic black voting age
populations. In order to achieve population
equality while maintaining these majorityminority districts, the [House] modified
district lines by adding population from
adjoining areas.
App. at 55a. Because of natural population shii~s, Act
72 was only able to re-pack 28 of the 29 majority:black
districts created by Act 55. In what can only be
described as a racial quota, the State boasted:
However, the House did elevate two other
districts to majority-minority status: District
79 and District 103. [...] Thus the House plan
in [Act 72] increases the number of majorityminority districts from 29 to 30. [...]
Moreover, the plan does not decrease the
absolute the absolute [sic] number of
representatives which a minority group has a
fair chance to elect.
App. at 56a-57a. Speaker Harrell’s cover letter to DOJ
explained the purportedly benevolent effect of Act 72
on minority voters, stating that the plan had neither
a discriminatory purpose nor would result in
retrogression but "[t]o the contrary, [Act 72] enhances
the position of racial minorities with respect to their
effective exercise of the electoral franchise when
compared to the redistricting plan currently in effect."
App. at 63a (emphasis added).
4. Trial before the Three-Judge Court. After
the Attorney General precleared Act 72, Appellants
16
filed suit challenging the statewide scheme as a
violation of equal protection. Appellants, all black
voters and the alleged beneficiaries of this electoral
segregation, argued that "[t]he essence of [their] equal
protection claim [was] that ’the State has used race as
a basis for separating voters into districts[,]" and that
"’[1]aws classifying citizens on the basis of race cannot
be upheld unless they are narrowly tailored to achieve
a compelling state interest." Pls.’ Final Mem., 5-6,
ECF No. 209 (quoting Miller v. Johnson, 515 U.S. 900,
904, 911 (1995)).
The three-judge court took two days of testimony
beginning on March 1, 2012. The court dramatically
limited Appellants’ opportunity to present evidence
due to contested evidentiary rulings that protected the
Republican leadership from compulsory testimony
concerning their motives and insisted as much
evidence as possible be presented via affidavit even
though the court ruled critical parts of these affidavits
inadmissible hearsay.1° Despite these evidentiary
lo For example, the district court was presented with uncontradicted evidence of discriminatory intent from Rep. ButlerGarrick that Rep. Thad Viers (R-Horry) explained the calculus
behind the § 5 strategy as part of an effort to "get rid of white
Democrats" by eliminating bi-racial constituencies with "the
long-term goal [oI] a future where a voter who sees a ’D’ by a
candidate’s name knows that the candidate is an AfricanAmerican candidate." App. at 40a-41a. Over Appellants’ objections (citing Fed.R.Evid. 801(d)(2)), the district court excluded
this portion of Rep. Butler-Garrick’s affidavit as inadmissible
hearsay. While this testimony is unnecessary for Appellants to
prevail here, it bears an alarming similarity to allegations
rejected by the Alabama district court. ALBC, 2013 WL at *53
(explaining the ALBC and ALDC plaintiffs argued that the laws
were the product of a Republican strategy to make the
Democratic Party the "black party" and the Republican Party the
"white party").
17
limitations, plaintiffs presented uncontested testimony from Reps. Sellers and Butler-Garrick11 that the
General Assembly used race far beyond what was
required by the VRA.
To rebut this evidence, the State presented
testimony from only one witness, Dr. Thomas Brunell,
a political science professor at the University of Texas,
Dallas. On direct examination, Dr. Brunell readily
conceded the legislature used race, but argued he was
unable to discern whether race was the predominant
factor since Kits consideration was appropriate, of
course, and necessary to comply with one person one
vote standards and avoid retrogression." App. at 78a
(emphasis added). Dr. Brunell testified that the VRA
required majority-minority districting in South
Carolina even though the State never obtained any
empirical evidence prior to adopting Act 72. App. at
79a-84a (testifying § 5 permitted drawing districts
with BVAP percentages at 50% or higher). In fact, Dr.
Brunell’s opinion turned on his view that the existence
of any racially polarized voting in a covered jurisdiction mandated the creation of majority-minority
districts even if a lower BVAP would provide an equal
opportunity to elect a candidate of choice. App. at 84a.
The State’s court filings also pressed its view that
§ 5’s retrogression standard prohibited any diminution
in BVAP or any reduction in the number of majority-
11 The court also considered affidavit testimony of state
Senator Bradley Hutto and Congressman James E. Clyburn and
expert testimony from Dr. Michael P. McDonald, Associate
Professor of Government and Politics at George Mason
University. Dr. McDonald testified that the pattern of legislative
decisions concerning the majority-black House districts could
best be explained as racial decision-making.
18
black districts. Speaker Harrell explained away the
possibility of discriminatory purpose in the public
comments of his legislative lieutenants as an effort to
comply with § 5:
For instance, Plaintiffs cite to statements by
[Reps.] Harrison and Clemmons urging
rejection of amendments affecting District 82,
a majority-minority district, to avoid retrogression. Contrary to Plaintiffs’ claims, these
statements do not demonstrate that race
predominated in drawing the plans, but
instead show that the House considered race
in a narrowly tailored effort to achieve a
compelling state interest: avoiding the
retrogression prohibited by Section 5 of the
Voting Rights Act.
Mot. Dismiss, 7, ECF No. 63 (emphasis added).
Similarly, in his motion for summary judgment on
Appellants’ equal protection claim, Speaker Harrell
admitted the legislature used race "[i]n formulating
the Redistricting Plan in accordance with the Voting
Rights Act" and reiterated the State’s view that the
House was "required" to ensure that Act 72 "not
contain fewer majority minority districts than the
prior plan." Mem. Supp. Sum. J., 7, ECF No. 110-1
(citing § 5).
5. Judgment and Appeal. On March 9, 2012, the
district court entered judgment for the State. In
upholding Act 72, the district court saw its role as
limited to balancing the remedial mandate imposed by
§ 5 against the constitutional limits to the remedial
use of race imposed by the predominate-factor cases
like Reno v. Shaw and its progeny. See Backus, 857 F.
Supp. 2d at 557-58. For example, even though the
court credited Rep. Sellers’ testimony as "strongly
19
suggest[ing] that race was a factor in drawing many
districts lines," it found this evidence insufficient to
demonstrate race predominated over all other
considerations. Id. at 565. Any doubt as to whether
the district court reasoning was constrained by the
predominant-factor cases is dispelled by its conclusion
that:
race can be~and oi~en must be--a factor in
redistricting. For South Carolina, a covered
jurisdiction under the Voting Rights Act,
federal law requires that race be a consideration. The General Assembly had to
consider race to create districts that complied
with federal law, which it did. The Court’s
task is to ensure that, in drawing the
districts, the General Assembly did not rely
on race at the expense of traditional raceneutral principles. Because Plaintiffs have
failed to demonstrate that race predominated
over traditional race-neutral principles, the
Court is satisfied that the General Assembly
did not overly rely on race in a manner that
runs afoul of the Fourteenth Amendment.
Id., at 565 (emphasis added).
Appellants appealed arguing the district court’s
unquestioning acceptance of remedial VRA districting
was a departure from this Court’s precedent in mixedmotive cases and threatened to allow purportedly
~benign" racial action as a ~contrivance to segregate,"
thereby undermined the very transformational
purpose of the VRA. See United Jewish Organizations
v. Carey, 430 U.S. 144, 173 (1977) (Brennan, J.,
concurring). This Court summarily affirmed, but
granted certiorari in Shelby County to hear the facial
20
challenge to §§ 4 and 5 of the VRA presented in that
case.
6. Appellants’ Rule 60(b) motion. In light of
Shelby County, Appellants moved the district court for
relief from its judgment to consider whether Act 72
could survive strict scrutiny by pointing to some other
compelling state interest in the use of race. With
candidate filing deadlines for the 2014 election just six
months away, Appellants urged the district court to
act with haste so the legislature would have sufficient
time to adopt a new, racially neutral plan. See
McDaniel v. Mehfoud, 702 F. Supp. 588, 596 (E.D. Va.
1988) (time permitting, courts should afford the
legislature an opportunity to enact a new plan). Five
months aider briefing closed, the district court denied
the motion and declined to hear oral argument noting
its skepticism "that Shelby County represents a
change in the law" and concluding it was "persuaded
neither by Plaintiffs’ interpretation of Shelby County
nor their arguments for applying or extending its
holding to the present case." App. at 7a.
ARGUMENT
I.
The three-judge court’s failure to recognize
that § 5 was not legally in effect in 2011 leaves
in place a racial gerrymander never
subjected to strict scrutiny.
There is no dispute the legislature employed a racial
classification in an effort to comply with § 5’s peculiar
mandate. Shelby County holds that the burdens
imposed by § 5 were unconstitutionally applied from
2006 forward. What the district court mistakenly
refused to recognize is that when the legislature took
race-based action in 2011, it did so relying on an
unconstitutional predicate. The district court’s failure
21
to recognize this change in law likewise resulted in a
failure to realize that the predominant-factor test
articulated in Shaw and its progeny was no longer the
correct standard of review. In the absence of § 5,
traditional equal protection analysis places the burden
on the state to show the use of race is "narrowly
tailored" to achieve a "compelling" government
interest. See, e.g., Fisher, 133 S. Ct. at 2420; Parents
Involved, 551 U.S. at 720.
Appellants respectfully submit there is no compelling state interest on which the State can now rest
its defense of Act 72. However, the district court
should have, at a minimum, afforded the litigants an
opportunity to review the record in search of one and
its failure to do so is grounds to summarily reverse or
note probable jurisdiction.
A~ Shelby County is a change in substantive
law.
The district court’s conclusion that Shelby County
is not a substantive change in law profoundly
misunderstands that decision and related precedent.
Section 5 "suspend[ed] all changes to state election
law however innocuous--until they have been
precleared by federal authorities in Washington, D.C."
Shelby Cnty., 133 S. Ct. at 2624 (quoting Northwest
Austin Municipal Util. Dist. No. One v. Holder, 557
U.S. 193, 203 (2009)).
Section 5, unlike
§ 2, only applied to "covered jurisdictions"---states and
political subdivisions falling within the ambit of a
coverage formula contained in § 4 of the VRA. See id.
at 2619-20 (discussing § 4(b), 79 Stat. 438). A proposed
voting change could only take effect in a covered
jurisdiction after being "precleared" by a three-judge
federal court or the Attorney General that the proposed change "neither has the purpose nor will have
22
the effect of denying or abridging the right to vote on
account of race or color, [or language minority status]."
42 U.S.C. § 1973c.
This "preclearance" regime imposed far more
stringent standards on covered jurisdictions by
requiring race-conscious districting. Specifically, § 5
prohibited changes to election districts that "would
lead to a retrogression in the position of racial
minorities with respect to their effective exercise of
the electoral franchise." Beer v. United States, 425 U.S.
130, 141 (1976). To discern whether a plan is retrogressive, federal authorities compared a proposed
redistricting plan to the benchmark plan. A proposed
plan was "retrogressive" under § 5 if it diminished the
minority community’s "effective exercise of the
electoral franchise" as compared to the benchmark.
Id., at 141.
Congress’s 2006 reauthorization of the VRA
amended § 5’s already stringent remedy "to prohibit
more conduct than before." Shelby Cnty., 133 S. Ct. at
2621. In relevant part, the amended § 5 sought to
abrogate Georgia v. Ashcroft, 539 U.S. 461 (2003),
which held that covered jurisdictions were not
obligated to design election districts to maximize
BVAP or the number of black candidates elected.
Ashcroft reasoned that "minority voters are not
immune from the obligation to pull, haul, and trade to
find common political ground, the virtue of which is
not to be slighted in applying a statute meant to
hasten the waning of racism in American politics." Id.
at 480-82 (quoting Johnson, 512 U.S. at 1020)); see
also, id., at 489-90.
Notwithstanding Ashcroft’s clear signal that the
purpose of § 5, indeed the very measure of its success,
was its own increasing obsolescence, Congress
23
amended § 5 to prohibit any change with the purpose
or effect of diminishing minority voters’ ability to
elect candidates along strictly racial lines. See 42
U.S.C. § 1973c(b). By forbidding any diminution in
minority voting power, § 5 effectively codified black
maximization into federal law. In other words, once a
district was ~elevated" (to borrow the State’s term) to
majority-black status, the retrogression doctrine
barred reducing its BVAP. Accordingly, the 2006
reauthorization of the VRA only heightened concerns
that § 5 ~fail[ed] to account for current political
conditions[,]" Nw. Austin Mun. Util. Dist. No. One, 557
U.S. at 203, and gave rise to constitutionally suspect
outcomes whereby ~considerations of race that would
doom a redistricting plan under the Fourteenth
Amendment or § 2 seem to be what save it under
§ 5." Ashcroft, 539 U.S. at 491-492 (Kennedy, J.,
concurring).
Shelby County holds that Congress’s reliance on
decades-old data and decades-old problems to justify
the preclearance regime bears "no logical relation" to
present needs, and thus violates the Constitution.
133 S. Ct. at 2629-31. While this Court took care to
issue no holding on § 5 itselfman exercise of judicial
restraint that left open whether Congress could again
justify the remedy through a more congruent coverage
formula--its decision unquestionably holds the
application of § 5 unconstitutional from 2006 forward.
Simply put, Shelby County is a seismic shift in the
constitutional landscape here because it removes the
justification for employing a racial classification in
redistricting, and with good reason. "[T]hings have
changed in the South .... And minority candidates hold
office at unprecedented levels." Id. at 2621 (internal
quotations omitted).
24
While no one doubts that these improvements are a
credit to the success of the VRA, see id., remedial
districting must, at some point, come to an end
because it relies on "a quintessentially race-conscious
calculus aptly described as ’the politics of second
best.’" Johnson, 512 U.S. at 1020. This sentiment
was echoed by Congressman James E. Clyburn who
represents South Carolina’s lone majority-black
congressional district and who testified that fully
equal participation in the political process for South
Carolina’s black minority requires something more
than remedial districting will ever allow because,
In order for black voters to get the issues they
care about addressed by their elected leaders,
they must, at some point, work together with
white voters to elect representatives that both
white and black voters agree will represent
their interests.
App. at 91a. As such, this Court’s recognition that
federally mandated racial districting is no longer
justified, and thus, no longer allowed, marks a
dramatic change in law to which the district court
failed to properly adhere.
B. Act 72 cannot be justified by the
predominant-factor doctrine and must be
subjected to strict scrutiny.
Equal protection has long required that whenever
government employs a racial classification, the
government bears the burden of showing a genuinely
remedial purpose advanced through the least restrictive means. See, e.g., Fisher, 133 S. Ct. at 2420-21;
Parents Involved, 551 U.S. at 720-21; Adarand
Constructors, Inc. v. Pend, 515 U.S. 200, 227 (1995)
25
(plurality opinion). This inquiry affords the government no deference on account of good faith or
remedial intent. Fisher, 133 S. Ct. at 2420-21. Strict
scrutiny applies because "[a]bsent searching judicial
inquiry.., there is simply no way of determining what
classifications are ’benign’ or ’remedial’ and what
classifications are in fact motivated by illegitimate
notions of racial inferiority or simple racial politics."
City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493
(1989). Indeed, this Court has o~en expressed grave
concern that even truly benign classifications risk
perpetuating the disease they seek to cure. Bush, 517
U.S. at 993 ("we must strive to eliminate unnecessary
race-based state action that appears to endorse the
disease.") (O’Conner, J., concurring); Shaw v. Reno,
509 U.S. at 657 ("Racial gerrymandering, even for
remedial purposes, may balkanize us into competing
racial factions.").
There is nothing special about redistricting laws
that insulates them from the scrutiny applied to all
other laws that employ racial classifications. See, e.g.,
Shaw v. Hunt, 517 U.S. at 905-07 (noting that
explained in Miller [ ] that a racially gerrymandered
districting scheme, like all laws that classify citizens
on the basis of race, is constitutionally suspect.").
However, in all prior instances in which this Court has
been asked to apply strict scrutiny to redistricting
law, it considered laws subject to VRA-remedial
districting. These cases, which established the
predominant-factor doctrine relied on by the district
court’s principal opinion, are most aptly understood as
prohibiting remedial districting when not required by
the VRA. This conclusion is obvious from the
predominant-factor cases. For example, in Shaw v.
Reno, this Court explained the competing goods that
gave rise to the doctrine as "the meaning of the
26
constitutional ’right’ to vote, and the propriety of racebased state legislation designed to benefit members of
historically disadvantaged racial minority groups."
509 U.S. at 633-34 (also explaining how § 5 gave rise
to the challenged majority-minority district). While
the Shaw litigants claimed that the VRA’s remedial
districting mandate was per se unconstitutional, id. at
638, this Court disagreed, explaining that remedial
districting ran afoul of equal protection when it "lacks
sufficient justification." Id. at 649.
Two years later, in Miller v. Johnson, this Court
explained that bizarre shape was not the threshold
requirement of the claim recognized in Shaw, but that
it evidenced racial action "for its own sake" rather
than some legitimate purpose. 515 U.S. at 913. The
Court also acknowledged that its unusually-restrained
equal protection analysis arose from the fact that
Georgia was subject to § 5’s mandate, id. at 905
(explaining Shaw applied equal protection analysis
"in the voting rights context"), which required it to
weigh equal protection’s mandate against clear
evidence that Georgia employed a black maximization
districting policy. Id. at 904, 906-10. Georgia’s redistricting law violated equal protection because it was
"not required under the [VRA]" and because the DOJ
had "no reasonable basis" to require unnecessary § 5
districting. Id. at 923. Likewise, Shaw v. Hunt
rejected the DOJ’s effort to impose the same black
maximization policy on North Carolina. 517 U.S. at
913. North Carolina’s acquiescence was not required
by § 5, thus running afoul of the predominant-factor
doctrine and triggering strict scrutiny. Id. Similarly,
in Bush v. Vera, the Court looked to "substantial direct
evidence of the legislature’s racial motivations" as
evidenced by Texas’s § 5 preclearance submission
and "testimony of individual state officials [that]
27
confirmed that the decision to create . . . majorityminority districts was made at the outset of the
process and never seriously questioned." 517 U.S. at
960-61. The Court explained that even when voting is
racially-polarized, the VRA only requires "reasonably
compact majority-minority district[s]." Id. at 979.
Since race-conscious districting was required for
covered jurisdictions, the predominant-factor doctrine
afforded states room to engage in § 5 districting
without triggering strict scrutiny review. Indeed, the
term "predominant" suggests some tolerance for racial
action within the confines of the VRA. Simply put, the
predominant-factor doctrine held that when covered
jurisdictions used race in excess of the VRA’s mandate,
race predominated and strict scrutiny applied. But so
long as the racial classification was required by the
VRA, the predominate-factor doctrine afforded states
a safe harbor in which to legislate. See Easley v.
Cromartie, 532 U.S. 234, 241-42 (2001) (explaining
that a Shaw plaintiffbore a "demanding" burden). But
outside the limited scope of the Shaw cases, there is
no precedent for placing the burden of proof on an
equal protection plaintiff once he makes a threshold
showing that a racial classification exists. Instead,
once a plaintiff makes this threshold showing the
government must come forward to either rebut the
assertion or, at least, show that the same decision
would have been made but-for the unconstitutional
motive. See Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S.
252, 270 n.21 (1977); Mt. Healthy City Sch. Bd. v.
Doyle, 429 U.S. 274, 285-87 (1977).
This action is well beyond threshold showings as the
record definitively establishes a racial classification
was, in fact, used. See Backus, 857 F. Supp. 2d at 565.
28
Had the district court properly understood this, it
would have vacated its Order and treated Act 72 as a
suspect classification in need of strict scrutiny.
II. The monumental change in law announced in
Shelby County merits post-judgment relief.
Appellants moved the district court pursuant to
Rule 60(b)(5) and (b)(6) of the Federal Rules of Civil
Procedure to vacate its Order and consider whether
Act 72 could meet strict scrutiny. The court misconstrued Appellants’ Shelby County argument, but
nevertheless concluded it "[fell] short of satisfying
Rule 60(b)(5)’s standard[.]" App. at 8a. This conclusion turned on the district court’s view that its
judgment approving the constitutionality of Act 72
has no prospective application. App. at 9a-10a. With
respect to subsection (b)(6), the district court offered
no analysis as to whether this case presented
"extraordinary circumstances," but instead merely
referred back to its earlier reasoning concerning
subsection (b)(5). App. at lla.
The purpose of Rule 60(b) is to ensure that
judgments reflect the true merits of a case. 11 Charles
Alan Wright, Arthur R. Miller & Edward H. Cooper,
Fed. Prac. & Proc. Civ. § 2852 (3d ed. West 2013). True
to this purpose, virtually all of the federal circuits have
construed the rule liberally so as to "prevent the
judgment from becoming a vehicle of injustice."
United States v. Walus, 616 F.2d 283, 288 (7th Cir.
1980).12 So while our system of justice values the
12 See also, Holliday v. Duo-Fast Maryland Co., 905 F.2d 1529
(4th Cir. 1990); Graham by Graham v. Wyeth Laboratories, Div.
of Am. Home Products Corp., 906 F.2d 1399, 1418 (10th Cir.
1990); Solaroll Shade and Shutter Corp. v. Bio-Energy Sys., Inc.,
803 F.2d 1130, 1132 (llth Cir. 1986); Barber v. Turberville, 218
F.2d 34, 36 (D.C. Cir. 1954); Fackelman v. Bell, 564 F.2d 734, 735
29
finality of disputes, finality standing alone is
unpersuasive grounds to deny relief when considering
the application of a rule with the sole purpose of
making an exception to finality. Gonzalez v. Crosby,
545 U.S. 524, 529 (2005).
The district court’s Order cannot be summarily
affirmed for two reasons. First, its application of
Rule 60(b)(5) is plainly inconsistent with this Court’s
reasoning in cases like Hornev. Flores, because it fails
to recognize the continuing impact of its decision
approving Act 72. Second, the district court offered no
reasoning for rejecting relief under Rule 60(b)(6),
leaving its decision completely untethered from any of
this Court’s precedents.
A. The district court failed to consider the
prospective effect of Act 72 and its impact
on South Carolina voters.
Rule 60(b) permits a party to seek relief from a
judgment when it "is based on an earlier judgment
that has been reversed or vacated; or applying it
prospectively is no longer equitable." Fed. R. Civ. P.
60(b)(5). The rule authorizes a court to "modify or
vacate a judgment or order if a significant change
either in factual conditions or in law renders continued
enforcement detrimental to the public interest."
Horne, 557 U.S. at 447 (quotations omitted). Proper
application of this rule requires acute consideration of
the public interest in the court’s consideration of
(5th Cir. 1977); but see, DavilaoAlvarez v. Escuela de Medicina
Universidad Cent. del Caribe, 257 F.3d 58, 64 (lst Cir. 2001)
(taking a stricter approach, but noting "rule must be applied so
as to recognize the desirability of deciding disputes on their
merits’(internal quotations omitted)).
3O
intervening event(s) on its earlier judgment and the
need to correct its decision.
For example, this Court was critical of the district
court’s refusal in Horne to reconsider its order that the
state denied equal educational opportunities aider the
state legislature intervened and moved for relief on
account of changed circumstances. Id. at 444. The
refusal to grant relief denied current policymakers the
opportunity to remedy the errors of their predecessors.
Id. at 449. Horne raised concerns that the persistence
of erroneous remedial federal action had a deleterious
effect on normative politics--a concern powerfully
present here. This Court reasoned that the district
court’s refusal to reexamine its order risked changing
the behavior of public officials who may "consent to, or
refrain from vigorously opposing, decrees that go well
beyond what is required by federal law." Id. at 44849. Some local officials might prefer continued federal
oversight in lieu of ordinary avenues of political
change if the federally-imposed policy, rightly or
wrongly, was consistent with their personal policy
preference. See id. The parallels to this case are
uncanny, particularly since the three-judge court here
was presented with, and refused to consider, evidence
that Act 72’s strict adherence to § 5 was
little more than a contrivance to segregate. Failure to
reexamine this racial classification now is troubling
for two additional reasons with prospective effect.
First, leaving Act 72 in force for the balance of the
decade--four more general elections--means allowing
it to reorient normative politics along purely racial
lines. Election results under the plan thus far support
this conclusion. Consider again District 79, which
from 2006 through 2010 saw a biracial constituency
prevail in electing minority-preferred candidates in
three hotly contested partisan general elections. But
31
during the 2012 election, the first election conducted
under Act 72, Rep. Butler-Garrick faced no general
election opposition.13 With 2014 candidate filings
complete, it is clear that Rep. Butler-Garrick (now Mia
McLeod) will face an African-American challenger in
next week’s Democratic Primary and the winner of
that contest will, once again, face no general election
opponent. In other words, Act 72 has recast the
democratic process along purely racial lines by
shaping white and black candidates’ decisions to run
(or not run) for office based on artificially manipulated
racial demographics.
Second, leaving Act 72 in place reinforces the
erroneous belief that such a classification is needed
and justified, a belief likely to persist beyond the life
of this particular redistricting plan. Even when a
new redistricting plan is drawn in 2021, Act 72 will
serve as the starting point for correcting any realapportionment. Even if the future law is drawn to be
race-neutral, it will be tainted by racial decision
making from a decade earlier, thus grandfathering in
the denial of equal treatment to the extent the new
plan is able to adhere to Act 72’s lines. The district
court misconstrued subsection (b)(5) as limited to
executory orders and institutional reform litigation
requiring federal monitoring, but a court’s power to
modify a judgment is not limited as such and extends
to any judgment with prospective effect. Wright &
Miller, § 2863. Here, the future effect of Act 72 strikes
at the very core of our notions of democratic
representation and should have been reexamined by
the district court.
13 Appellants ask that the Court take judicial notice of the
public record available at: www.scvotes.sc.gov. See Fed. R. Evid.
201.
32
Moreover, a court’s duty to reexamine a prior
judgment is strongest when that need arises from a
substantial change in law. For example, in Agostini v.
Felton, this Court held a change in Establishment
Clause precedent as grounds to vacate a district court
order relying on obsolete precedent. 521 U.S. 203, 215
(1997). This Court explained its decision was not an
invitation to district courts to decide cases contrary to
precedent, but merely the recognition that when
precedent changes, opinions predicated "on a legal
principle that had not withstood the test of time"
must be vacated. See id. The three-judge court
misconstrued this argument as asking it to "declare
that Shelby County impliedly overruled the Supreme
Court’s longstanding precedent with regard to
redistricting." App. at 13a. But as explained above,
there is nothing implied nor ambiguous about Shelby
County’s holding that § 5 was unconstitutionally
applied; it is a clear departure from precedent just like
Agostini. The district court misunderstood that it
was not being asked to depart from precedent, but
react to it. This mistake left it unable to appreciate
the consequences of leaving its judgment in effect.
B. The district court failed to consider
whether, if Appellants’ theory is correct,
this case gives rise to an equal protection
violation and whether it constitutes an
exceptional circumstance warranting
relief.
Rule 60(b)(6) permits relief from a judgment for
"any... reason justifying relief’ other than the more
specific reasons set forth in the rule. This provides
courts with authority "adequate to enable them to
vacate judgments whenever such action is appropriate
to accomplish justice," provided this authority "only be
33
applied in extraordinary circumstances[.]" Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 863-64
(1988) (quotations omitted) (quoting Klapprott v.
United States, 335 U.S. 601 (1949) and Ackermann v.
United States, 340 U.S. 193 (1950)). While this
analysis does not lend itself to formulaic application,
this Court has previously looked to whether the
decisional rule the petitioner sought to vindicate is, in
fact, implicated by the case before it. For example, in
Liljeberg, this Court found it "critically important" to
identify facts supporting the appellant’s conclusion
that the judicial recusal statute was violated. 486 U.S.
at 865-67. Rule 60(b)(6) relief was warranted because
the facts in that case gave rise to "precisely the kind of
appearance of impropriety that [the judicial recusal
statute] was intended to prevent." Id. at 867.
Similarly here, the district court’s evidentiary finding
that race was used to draw election districts is
precisely the sort of suspect classification ordinarily
giving rise to strict scrutiny. Even though the district
court claimed to assume arguendo that Shelby County
constituted a change in law, App. at 7a, it clearly failed
to meaningfully engage in this analysis. Had the court
properly credited Appellants’ argument as it claimed,
it would have realized the factual record here raises
serious equal protection concerns.
In Klapprott and Ackerman, this Court declined to
provide rigid boundaries to the application of this rule,
but explained that "extraordinary circumstances"
are those that give rise to a need for relief through no
fault or on account of no neglect by the petitioner.
See Ackermann, 340 U.S. at 199-200, (discussing
Klapprott); see also, Liljeberg, 486 U.S. at 864 n.ll ("Of
particular importance, this is not a case involving
neglect or lack of due diligence by respondent."). But
the totality of the district court’s analysis concerning
34
the propriety of Rule 60(b)(6) relief was its conclusion
that Plaintiffs’ reliance on Shelby County as grounds
for relief under both subsection (b)(5) and (b)(6),
meant that "[h]aving found that granting relief.., is
unnecessary and unwarranted under Rule 60(b)(5)
based on a change in the law, the Court similarly finds
that Appellants have also failed to demonstrate
’extraordinary circumstances’ warranting relief under
Rule 60(b)(6)." App. at lla. In reaching this conclusion,
the district court neither considered, nor explained,
why the circumstances here, arising through no lack
of diligence by Appellants, were not extraordinary, an
omission that should not be affirmed.
In seeking relief here Appellants are not asking for
an "unscrambling of the past" by overturning any
popular election previously conducted under Act 72.
See Aikens v. Ingram, 652 F.3d 496, 500 (4th Cir.
2011). Instead, the question presented here asks how,
and how quickly, South Carolina and other formerly
covered jurisdictions are to rejoin the rest of the nation
by leaving behind the politics of second best. Even
amongst those litigants now asking whether this
decade’s districting went too far in its use of race, some
mistakenly read the predominant factor doctrine to
survive Shelby County. See, e.g., ALDC J.S. at 14-18
(arguing race predominated); Compl. ~[3-5, Page,
3:13-cv-678, ECF No. 1 (citing Shelby County as
grounds for relief but also arguing race predominated).
If accepted, this argument will create a separate body
of law within equal protection jurisprudence whereby
all racial classifications are subject to strict scrutiny
except redistricting laws---laws that shape the
fundamental right to choose elected representatives.
Such a result is inconsistent with this Court’s
precedent and would sanction redefining our political
35
identities in purely racial terms. See Shaw v. Reno,
509 U.S. at 650; see also, Richard H. Pildes, Diffusion
of Political Power and the Voting Rights Act, 24 Harv.
J.L. & Pub. Pol’y 119, 120-21 (2000).
Such a conclusion would also leave open the
opportunity for future racial districting as a ploy to
gain political advantage.14 Appellants here submit
they are the only litigants to fully embrace the
compellingly simple and constitutionally necessary
reasoning adopted by Judge Thompson’s dissent.
South Carolina drew a racial gerrymander. Even if it
did so in good faith, that law must now pass strict
scrutiny. Respectfully, it cannot and therefore denies
equal protection.
CONCLUSION
For the reasons above, the Court should note
probable jurisdiction and either summarily reverse for
an adequate hearing on the merits or require full
argument and briefing of the questions presented.
Respectfully submitted,
RICHARD A. HARPOOTLIAN
Counsel of Record
RICHARD A. HARPOOTLIAN, P.A.
1410 Laurel Street
Columbia, SC 29201
(803) 252-4848
rah@harpootlianlaw.com
June 6, 2014
14 As Alabama’s motion to dismiss or ~ in ALBC aptly
illustrates, the Republican-legislature responsible for this
decade’s racial gerrymander justifies that plan as necessary to
correct the Democratic legislature’s racial gerrymander a decade
earlier. See Ala. Mot. Dismiss Aft. at 4, No. 13-895