APPENDIX
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APPENDIX A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DMSION
Case No.: 3:11-cv-03120-HFF-MBS-PMD
VANDROTH 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,
Plaintiffs,
V,
THE STATE OF SOUTH CAROLINA, NIKK~ R. HALEY, in
her capacity as Governor, GLENN F. MCCONNELL, in
his capacity as President Pro Tempore of the Senate
and Chairman of the Senate Judiciary Committee,
ROBERT W. HARRELL, JR., in his capacity as Speaker
of the House of Representatives, MARCI ANDINO, in
her capacity as Executive Director of the State
Election Commission; JOHN H. HIYDGENS, III,
Chairman, NmOLE S. WroTE, MARmY~ BOWERS, MARK
BENSON, and THOMAS TARING, in their capacities as
Commissioners of the State Election Commission,
Defendants.
ORDER
Before HENRY F. FLOYD, United States Circuit
Judge, MARGARET B. SEYMOUR, Senior District
Judge, and PATRICK MICHAEL DUFFY, Senior
District Judge.
2a
PER CURIAM:
This matter is before the Court on Plaintiffs’ Motion
for Relief from a Judgment and Order ("Motion for
Relief’) pursuant to subsections (5) and (6) of Rule
60(b) of the Federal Rules of Civil Procedure. For the
reasons set forth herein, Plaintiffs’ Motion for Relief is
denied.
BACKGROUND
This action stems from Plaintiffs’ various challenges
to South Carolina’s electoral redistricting plans.1 In
light of significant population growth between the
2000 and 2010 censuses, as well as the addition of a
seventh congressional seat, the South Carolina
General Assembly undertook to redraw the state
legislative and congressional districts following the
2010 elections. After the redistricting plans were
enacted by the General Assembly and signed into law
by Governor Nikki R. Haley, the plans became
effective, subject to federal administrative preclearance pursuant to section 5 of the Voting Rights Act.
The Department of Justice subsequently granted
preclearance to the plans, at which point the plans
took effect.
On November 11, 2011, Plaintiffs filed a Complaint
in the United States District Court for the District of
South Carolina seeking a declaratory judgment and
injunctive relief. Specifically, Plaintiffs alleged a
Fourteenth Amendment racial gerrymandering claim,
as to both the House and congressional plans; a
violation of section 2 of the Voting Rights Act, as to
both the House and congressional plans; a somewhat
1 The Factual Context and Procedural History of this litigation
are set forth in greater detail in this Court’s March 9, 2012 Order.
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unclear vote-dilution claim under the Fourteenth
Amendment; and a violation of the Fifteenth Amendment. The Court held a trial in Columbia on March
1-2, 2012, and on March 9, 2012, the Court entered
judgment for Defendants as to all of Plaintiffs’ claims.
Backus v. South Carolina, 857 F. Supp. 2d 553 (D.S.C.
2012) (three-judge panel). Following a direct appeal to
the United States Supreme Court, this Court’s
Judgment was affirmed on October 1, 2012. Backus v.
South Carolina, 133 S. Ct. 156 (2012).
On August 29, 2013, Plaintiffs filed a Motion for
Relief pursuant to Rule 60(b)(5) and (b)(6) of the
Federal Rules of Civil Procedure seeking to set aside
this Court’s March 9, 2012 Order and Judgment in
light of the Supreme Court’s decision in Shelby
County, Alabama v. Holder, 133 S. Ct. 2612 (2013).
Plaintiffs also request a hearing on their Motion for
Relief, an order setting aside this Court’s Order and
Judgment, and a scheduling order for the submission
of briefing and argument to determine whether the
House plan denies Plaintiffs equal protection under
the law as guaranteed by the Fourteenth Amendment.
Plaintiffs do not, however, request relief from the
entry of judgment in favor of Defendants as to their
challenges to the congressional plan.2 Moreover,
Plaintiffs’ Motion for Relief does not address, or seek
relief from, the Court’s entry of judgment in favor of
Defendants as to Plaintiffs’ Voting Rights Act or
Fifteenth Amendment claims. Accordingly, the only
issue presently before the Court is whether Plaintiffs
2 Although the Senate plan, enacted by Act 71 of 2011, was
originally part of this litigation, Plaintiffs and PlaintiffIntervenor Senator Dick Elliott voluntarily dismissed all claims
related to the Senate plan prior to the Court’s March 9, 2012
Judgment and Order. See Backus, 857 F. Supp. 2d at 557 n.1.
4a
are entitled to relief given the Supreme Court’s
decision in Shelby County.~ With all parties having
briefed this matter, Plaintiffs’ Motion for Relief is now
ripe for consideration.
STANDARD OF REVIEW
Pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure, a moving party may obtain relief from a
final judgment and seek to reopen the underlying case
in a limited number of circumstances. Gonzalez v.
Crosby, 545 U.S. 524, 528 (2005). Specifically, Rule
60(b) provides the means by which a court may grant
relief to a party from "a final judgment, order, or
proceeding," id., for one or more of five separately enumerated reasons, including "mistake, inadvertence,
surprise, or excusable neglect;" "newly discovered
evidence;" "fraud;" a void judgment; and a satisfied,
released, or discharged judgment, Fed. R. Civ. P.
60(b)(1)-(5). Additionally, a court may relieve a party
from a final judgment, pursuant to Rule 60(b)’s
"catchall" provision, Aikens v. Ingram, 652 F.3d 496,
500 (4th Cir. 2011) (en banc), for "any other reason
that justifies relief," Fed. R. Civ. P. 60(b)(6).
Although Rule 60(b) represents an "exception to
finality," U.S. Aid Funds, Inc. v. Espinosa, 559 U.S.
260, 269 (2010) (quoting Gonzalez, 545 U.S. at 529)
(internal quotation marks omitted), a Rule 60(b)
motion "is not a substitute for a timely and proper
appeal." Dowell v. State Farm Fire & Cas. Auto. Ins.
Co., 993 F.2d 46, 48 (4th Cir. 1993). Moreover, "Rule
33. In Reply to Speaker Harrelrs Memorandum in
Opposition, Plaintiffs claim that in light of Shelby County,
"Plaintiffs seek relief under one, and only one, theory: that the
affirmative use of race in dralting [the House plan] violates equal
protection." Pls.’ Reply to Def. Harrelrs Memo. Opp. to Pls.’ Mot.
Relief 3.
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60(b) does not authorize a motion merely for reconsideration of a legal issue." Tyson v. Ozmint, 246
F.R.D. 517, 519 (D.S.C. 2007) (quoting United States
v. Williams, 674 F.2d 310, 312-13 (4th Cir. 1982))
(internal quotation marks omitted); see also Williams,
674 F.2d at 312-13 ("Where the motion is nothing more
than a request that the district court change its mind,
however, it is not authorized by Rule 60(b)."). Rather,
"Rule 60 provides for an extraordinary remedy that
should not be awarded except under exceptional
circumstances." Mayfield v. Nat’l Ass’n for Stock Car
Auto Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012)
(citing Ackermann v. United States, 340 U.S. 193, 202
(1950)). Accordingly, in order to obtain relief pursuant
to Rule 60(b), "the moving party must make a
threshold showing that (1) its motion was timely
made; (2) it had a meritorious defense; (3) no unfair
prejudice to the opposing party would result; and
(4) exceptional circumstances warranted relief from
the judgment." Robinson v. Wix Filtration Corp. LLC,
599 F.3d 403, 412 n.12 (4th Cir. 2010) (citing Dowell,
993 F.2d at 48). In addition to meeting Rule 60(b)’s
threshold requirements, the moving party must
satisfy one or more of the Rule’s enumerated subsections. Dowell, 993 F.2d at 48.
ANALYSIS
Plaintiffs’ Motion for Relief seeks to set aside the
Court’s March 9, 2012 Judgment and Order pursuant
to subsections (5) and (6) of Rule 60(b). Without
addressing whether Plaintiffs have satisfied the four
prerequisites to Rule 60(b) relief, the Court proceeds
to the merits of whether the instant Motion for Relief
is appropriate under subsections (5) or (6) of Rule
60(b). See Dowell, 993 F.2d at 48 (employing similar
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approach in disposing of appeal from district court’s
denial of Rule 60(b) motion).
I. Rule 60(b)(5)
Plaintiffs first seek relief from the Court’s Judgment
and Order under Rule 60(b)(5) of the Federal Rules of
Civil Procedure. Rule 60(b)(5) provides that a party
may file a motion for relief from a final judgment if:
(1) the judgment at issue has been satisfied, released,
or discharged; (2) an earlier judgment on which it is
based has been reversed or vacated; or (3) applying the
judgment prospectively is no longer equitable. See
Fed. R. Civ. P. 60(b)(5). While the first two provisions
of Rule 60(b)(5) are rarely applied,4 "It]he significant
portion of Rule 60(b)(5) is the final ground, allowing
relief if it is no longer equitable for the judgment to
be applied prospectively." 11 Charles Alan Wright et
al., Federal Practice & Procedure § 2863 (3d ed. 2013).
Much like Rule 60(b) more generally, Rule 60(b)(5)
is not a substitute for an appeal and it is not intended
to permit relitigation of those issues already decided
or disposed of by the judgment. See id. Additionally,
"Rule 60(b)(5) may not be used to challenge the legal
conclusions on which a prior judgment or order rests."
Hornev. Flores, 557 U.S. 433, 447 (2009). Instead, the
drafters intended Rule 60(b)(5) to apply to situations
where the party seeking relief can demonstrate that
there has been some significant change in the
underlying conditions that makes continued enforcement inequitable. E.g., id. (citing Rufo v. Inmates of
Suffolk Cnty. Jail, 502 U.S. 367, 383 (1992)); 11
Wright et al., supra, § 2863. "Although the principal
significance of this portion of [Rule 60(b)(5)] is with
4 The first two provisions of Rule 60(b)(5) also are not raised
in, nor implicated by, Plaintiffs’ Motion for Relief.
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regard to injunctions, it is not confined to that form of
relief, nor even to relief that historically would have
been granted in courts of equity." 11 Wright et al.,
supra, § 2863. Nevertheless, as indicated by the text
of the provision itself, the judgment from which relief
is sought must be one with prospective application.
Fed. R. Civ. P. 60(b)(5).
Plaintiffs move for relief from this Court’s March 9,
2012 Judgment and Order under Rule 60(b)(5) in light
of the Supreme Court’s decision in Shelby County, 133
S. Ct. 2612. Specifically, Plaintiffs maintain that
Shelby County "constitutes a monumental change in
constitutional law," Pls.’ Memo. Supp. Mot. Relief 1,
that "changed the substantive law applicable in this
case," id. at 12. Moreover, Plaintiffs contend that ~the
Supreme Court’s decision to strike down the [s]ection
5 [of the Voting Rights Act] regime requires this Court
to reopen its prior judgment to examine the consequences of this dramatic change in law,"5 id. The
Court is persuaded neither by Plaintiffs’ interpretation of Shelby County nor their arguments for
applying or extending its holding to the present case.6
5 Although Plaintiffs repeatedly refer to Shelby County as
"holding [s]ection 5 unconstitutional," Pls.’ Memo. Supp. Mot.
Relief 2, or otherwise invalidating the provision, the Supreme
Court did not address section 5 of the Voting Rights Act. See
Shelby Cnty., 133 S. Ct. at 2631 ("We issue no holding on [section]
5 itself, only on the coverage formula.").
8 While this Court is not convinced that Shelby County
represents a change in the law--particularly one that would
benefit Plaintiffs--the Court assumes, arguendo, for purposes of
Plaintiffs’ Motion for Relief, that it does. See Dowell, 993 F.2d at
48. For a discussion of the Supreme Court’s opinion in Shelby
County, see Hall v. Louisiana, CIV.A. 12-00657-BAJ, 2013 WL
5405656, at *3-5 (M.D. La. Sept. 27, 2013); see also id. at *5
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Nevertheless, Plaintiffs’ arguments fall short of
satisfying Rule 60(b)(5)’s standard for granting relief
from judgment.
Although "[a] party ’may meet its initial burden by
showing either a significant change either in factual
conditions or in law," 7 L.J.v. Wilbon, 633 F.2d 297,
305 (4th Cir. 2011) (quoting Rufo, 502 U.S. at 384), the
text of Rule 60(b)(5) itself indicates that the provision
applies only to judgments with prospective application, Comfort v. Lynn Sch. Comm., 560 F.3d 22, 28 (1st
Cir. 2009) (citing Fed. R. Civ. P. 60(b)). In Dowell, the
Fourth Circuit explained that "a decisional change in
the law subsequent to the issuance of a final judgment,
especially.., where the earlier judgment is neither res
judicata nor provides collateral estoppel, does not
provide a sufficient basis for vacating the judgment
under Rule 60(b)(5)." 993 F.2d at 48; see also Hall v.
Warden, 364 F.2d 495, 496 (4th Cir. 1966) (en banc)
(refusing to vacate judgment on basis that it was
(stating that the rule of law set out by the Court in Shelby County
is given retroactive effect only to cases still under direct review).
7 Those cases permitting relief based on a change in decisional
law are largely limited to situations involving injunctions and
consent decrees, particularly in the context of institutional
reform litigation. E.g., 11 Wright et al., supra, § 2863 n.31
(collecting cases). As noted by the Supreme Court in Home, due
to the unique features of institutional reform litigation, such as
sensitive federalism concerns, courts are required to employ a
"flexible approach" to Rule 60(b)(5) motions in the context of
institutional reform decrees and injunctions. Home, 557 U.S. at
450. Indeed, "injunctions issued in such cases often remain in
force for many years, and the passage of time frequently brings
about changed circumstances--changes in the nature of the
underlying problem, changes in governing law or its interpretation by the courts, and new policy insights--that warrant
reexamination of the original judgment." Id. at 447-48.
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erroneous in light of subsequent Supreme Court
decision effecting change in decisional law). Here,
Plaintiffs assert that "It]he Court should set aside its
Order and Judgment pursuant to Rule 60(b)(5) or
(b)(6) of the Federal Rules of Civil Procedure because
the change in constitutional law announced in Shelby
County calls into question the prospective
appropriateness of this Court’s Order and the
continued viability of the House redistricting plan."
Pls.’ Memo. Supp. Mot. Relief 16. "That plaintiff
remains bound by the dismissal is not a ’prospective
effect’ within the meaning Rule 60(b)(5) any more than
if plaintiff were continuing to feel the effects of a
money judgment against him." Schwartz v. United
States, 976 F.2d 213, 218 (1992) (quoting Gibbs v.
Maxwell House, 738 F.2d 1153, 1155-56 (llth Cir.
1984)). Indeed, Plaintiffs’ arguments appear to take
the position that any judgment that continues to bind
the parties is prospective. However, as noted by the
Fourth Circuit in Schwartz, adopting such a
construction "would read the word ’prospective’ out of
the rule." Id. Moreover, the Court’s March 9, 2012
Judgment and Order is neither executory nor does it
involve the supervision or monitoring of the Parties’
conduct or of changing electoral conditions. Cf. Caesar
v. Padula, CIV.A. 0:12-316-MGL, 2013 WL 4757506,
at *2 (D.S.C. Sept. 3, 2013) (quoting Cincinnati Ins.
Co. v. Flanders Elec. Motor Serv., 131 F.3d 625, 630
(7th Cir. 1997) (noting that judgments are prospective
when they are executory or involve the supervision of
changing conduct or conditions, as opposed to judgments that merely have continuing consequences); see
also Castles Auto & Truck Serv., Inc. v. Exxon Corp.,
16 F. App’x 163, 168 n.3 (4th Cir. 2001) (noting that a
money judgment has no prospective application, even
when not yet satisfied). Accordingly, Plaintiffs have
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failed to demonstrate, for purposes of satisfying Rule
60(b)(5)’s standard, that the judgment from which
they now seek relief is one with prospective
application.
II. Rule 60(b)(6)
Plaintiffs also seek relief from judgment under Rule
60(b)(6) of the Federal Rules of Civil Procedure. Rule
60(b)(6) allows a party or its legal representative to
seek relief from a judgment or order for "any other
reason that justifies relief." Fed. R. Civ. P. 60(b)(6).
Although generally referred to as Rule 60(b)’s
"catchall" provision, e.g., Aikens, 652 F.3d at 500, "case
law limits the reasons for which a court may grant
relief under Rule 60(b)(6)," Dowell, 993 F.2d at 48.
Notably, "[a] Rule 60(b)(6) motion must be based upon
some other reason than those stated in clauses (1)
[through] (5)." Union Ins. Co. v. Soleil Grp., Inc., 585
F. Supp. 2d 783, 787 n.4 (D.S.C. 2008) (quoting Lepore
v. Ramsey, 149 F.R.D. 90, 94 (D. Md. 1993)); see also
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.
847, 863 (1988) ("In particular, Rule 60(b)(6)... grants
federal courts broad authority to relieve a party from
a final judgment "upon such terms as are just,"
provided that the motion.., is not premised on one of
the grounds for relief enumerated in clauses (b)(1)
through (b)(5).’).
Additionally, a Rule 60(b)(6) motion "may not be
granted absent ’extraordinary circumstances.’" Reid
v. Angelone, 369 F.3d 363, 370 (4th Cir. 2004) (quoting
Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 118 n.2
(4th Cir. 2000)). As the Supreme Court made clear in
Liljeberg, "the difference between Rule 60(b)(6) and
Rules 60(b)(1)-(5) is that ’extraordinary circumstances’
are required to bring the [Rule 60(b)(6)] motion within
the ’other reason’ language of that Rule." Valero
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Terrestrial Corp., 211 F.3d at 118 n.2 (quoting
Liljeberg, 486 U.S. at 863 n.ll) (internal quotation
marks omitted). Although "It]he Rule does not particularize the factors that justify relief," Liljeberg, 486
U.S. at 863-64, "[r]elief under 60(b)(6) is warranted
only upon a showing of extraordinary circumstances
that create a substantial danger that the underlying
judgment was unjust." Wojcicki v. Aiken Technical
Coll., l:06-CV-00461-MBS, 2012 WL 3596161, at *2
(D.S.C. Aug. 21, 2012) (quotingMargoles v. Johns, 798
F.2d 1069, 1073 (7th Cir. 1986) (per curiam)), affd,
501 F. App’x 286 (4th Cir. 2012).
Plaintiffs contend that "if the Court decides it lacks
authority pursuant to subsection (b)(5), it should grant
Plaintiffs relief pursuant to Rule 60(b)(6)." Pls.’
Memo. Supp. Mot. Relief 20. In support of this argument, Plaintiffs rely on "the same reasons set forth
above" in the context of their Motion for Relief under
Rule 60(b)(5). Id. Having found that granting relief
from this Court’s prior Judgment and Order is
unnecessary and unwarranted under Rule 60(b)(5)
based on a change in the law, the Court similarly finds
that Plaintiffs have also failed to demonstrate
"extraordinary circumstances" warranting relief
under Rule 60(b)(6).
Aside from pointing to the Supreme Court’s decision
in Shelby County, Plaintiffs have not cited any reason
sufficiently justifying the relief requested. "[A]s under
Rule 60(b)(5), such a change in decisional law subsequent to a final judgment provides no basis for relief
under Rule 60(b)(6)." 8 Dowell, 993 F.2d at 48; see also
8 Although Plaintiffs later concede that Shelby County "was not
a change in decisional law, but a shift in the constitutional
landscape," Pls.’ Reply to Def. Harrell’s Memo. Opp. to Pls.’ Mot.
Relief 13, a shii~ in the relevant legal landscape--even one of the
12a
Hendricks v. Galloway, 3:03-CV-740-DCN, 2011 WL
585970, at *2 (D.S.C. Feb. 9, 2011) ("A change in the
law or in the judicial view of an established rule of
law is not such an extraordinary circumstance which
justifies such relief.... Litigation must end some time,
and the fact that a court may have made a mistake in
the law when entering judgment, or that there may
have been some judicial change in the court’s view of
the law after its entry, does not justify setting it aside."
(quoting Collins v. City of Wichita, Kan., 254 F.2d 837,
839 (10th Cir. 1958) (internal citations omitted)),
affd, 431 F. App’x 219 (4th Cir. 2011), cert. dismissed,
132 S. Ct. 1048 (2012), reconsideration denied in part,
132 S. Ct. 1653 (2012). In attempting to distinguish
Dowell, Plaintiffs contend that "the decisional change
in Dowell [was] not so much of a ’change’ as a disagreement between coequals," because the district court in
Dowell "was properly vested with diversity jurisdiction
and capable of deciding questions of state law."
Pls.’ Reply to Def. Harrell’s Memo. Opp. to Pls.’ Mot.
Relief 12. With regard to the present case, however,
Plaintiffs state that "this Court was in no position to
overrule the United States Supreme Court’s four
earlier determinations that [s]ection 5 was constitutionally applied." Id. In support of this conclusion,
Plaintiffs cite Agostini v. Felton, 521 U.S. 203 (1997),
for the Supreme Court’s pronouncement that "[w]e do
not acknowledge, and we do not hold, that other courts
should conclude our more recent cases have, by
implication, overruled an earlier precedent." Id.
(citingAgonstini, 521 U.S. at 237).
Plaintiffs are indeed correct in that this Court was
not, and is not, authorized to overrule the Supreme
"seismic~ proportions Plaintiffs claim that Shelby County
represents--does not warrant Rule 60(b)(6) relief.
13a
Court’s prior determinations with regard to section 5,
both because of the structure of our federal courts and
because the constitutionality of section 5 was not an
issue presented to this Court.9 Nevertheless, it is
precisely the directive in Agostini Plaintiffs request
that this Court now ignore. Plaintiffs ask that this
Court declare that Shelby County impliedly overruled
the Supreme Court’s longstanding precedent with
regard to redistricting. The Court declines this
invitation. Moreover, Plaintiffs request that this
Court declare that the Supreme Court’s decision in
Shelby County undercut and effectively overruled its
own affirmance of this Court’s March 9, 2012
Judgment. The Court is hardly persuaded that a
Supreme Court decision, announced less than nine
months after the Supreme Court affirmed the very
Judgment from which Plaintiffs now seek relief,
constitutes "extraordinary circumstances" as contemplated and required by Rule 60(b)(6). Thus, Plaintiffs
have failed to demonstrate any such "extraordinary
circumstances" necessitating relief under Rule
60(b)(6).
CONCLUSION
Therefore, for the foregoing reasons, it is ORDERED
that Plaintiffs’ Motion for Relief is DENIED.
AND IT IS SO ORDERED.
March 10, 2014
Columbia, South Carolina
9 Again, the constitutionality of section 5 also was not
addressed by the Supreme Court in Shelby County. See Shelby
Cnty., 133 S. Ct. at 2631 ("We issue no holding on [section] 5 itself,
only on the coverage formula.~).
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APPENDIX B
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DMSION
Case No.: 3:11-cv-03120-PMD-HFF-MBS
VANDROTH BACKUS, WILLIE HARRISON BROWN,
CHARLESANN BUTTONE, BOOKER M~kNIGAULT,
EDWARD MCKNIGHT, MOSES MIMS JR,
ROOSEVELT WALLACE, and WILL~ G. WILDER,
on behalf of themselves and all other
similarly situated persons,
Plaintiffs,
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 Elections Commission,
Defendants.
NOTICE OF APPEAL TO THE
UNITED STATES SUPREME COURT
Notice is hereby given that Plaintiffs Vandroth
Backus, Willie Harrison Brown, Charlesann Buttone,
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Booker Manigault, Edward McKnight, Moses Mims,
Jr., and Roosevelt Wallace appeal to the United States
Supreme Court this Court’s Order (Mar. 10, 2014, ECF
No. 239) denying Plaintiffs’ Motion for Relief from a
Judgment and Order (Aug. 29, 2013, ECF No. 223).
Appeal is taken pursuant to 28 U.S.C. § 1253.
Respectfully submitted by:
/s/Richard A. Harpootlian
Richard A. Harpootlian (Fed. I.D. #1730)
Graham L. Newman (Fed. I.D. #9746)
M. David Scott (Fed. I.D. #8000)
Christopher P. Kenney (Fed. I.D. #11314)
RICHARD A. HARPOOTLIAN, P.A.
1410 Laurel Street
Post Office Box 1040
Columbia, South Carolina 29202
(803) 252-4848
(803) 252-4810 (facsimile)
rah@harpootlianlaw.com
gln@harpootlianlaw.com
mds@harpootlianlaw.com
cpk@harpootlianlaw.com
ATTORNEYS FOR THE PLAINTIFFS
Columbia, South Carolina
April 9, 2014
16a
APPENDIX C
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Case No.: 3:11-cv-03120-PMD-HFF-MBS
VANDROTH 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,
Plaintiffs,
V.
THE STATE OF SOUTH CAROLINA, NIKKI 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 WARING, in their capacity as
Commissioners of the Elections Commission,
Defendants.
CERTIFICATE OF SERVICE
I, Richard Harpootlian, attorney for the Plaintiffs,
Richard A. Harpootlian. P.A., with offices at 1410
Laurel Street, Post Office Box 1090, Columbia, South
Carolina 29202, certify that on April 9, 2014, pursuant
17a
to the United States Supreme Court Rule 29. served
by ELECTRONIC MAIL & U.S. MAIL, the following
document(s) to the below mentioned person(s):
Document(s}:
Notice of Appeal to the United
States Supreme Court.
Served:
J.C. Nicholson, III
Alan Wilson
James Smith, Jr.
Robert Cook
SC Attorney General’s Office
1000 Assembly Street
Rembert C. Dennis Building
Post Office Box 11549
Columbia, SC 29211
Benjamin Mustian
Tracey Green
Willoughby and Hoefer
930 Richland Street
Post Office Box 8416
Columbia, SC 29202
Robert Stepp
Robert Tyson, Jr.
Sowell Gray Stepp and Laffitte
Post Office Box 11449
Columbia, SC 29211
William Wilkins
Kirsten Small
Andrew A. Mathias
Nexsen Pruet, LLC
55 East Camperdown Way
Post Office Drawer 10648
Greenville SC 29603-0648
/s/Richard A. Harpootlian
Richard A. Harpootlian, Esquire
18a
APPENDIX D
[1] UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
CV No. 3:11-3120
VANDROTH BACKUS, et al.,
Plaintiffs
-againstTttE STATE OF SOUTH CAROLINA, et al.,
Defendants
Columbia, SC
March 1, 2012
BENCH TRIAL
Before: HON. MARGARET B. SEYMOUR
Chief United States District Court Judge
HON. HENRY F. FLOYD
Fourth Circuit Court Of Appeals Judge
HON. PATRICK MICHAEL DUFFY
Senior United States District Court Judge
TRIAL TESTIMONY OF BAKARI SELLARS
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APPEARANCES:
For Plaintiffs: RICHARDA. HARPOOTLIAN, P.A.
By: RICHARD A. HARPOOTLIAN, ESQ.
M. DAVID SCOTT, ESQ.
CHRISTOPHER KENNEY, ESQ.
1410 Laurel Street
P.O. Box 1090
Columbia, SC 29202
For Defendant SOWELL GRAY STEPP & LAFFrm~, L.L.C.
By: ROBERT E. STEPP, ESQ.
Harrell:
ROBERT E. TYSON, JR., ESQ.
1310 Gadsden Street
P.O. Box 11449
Columbia, SC 29211
[2] WILLOUGHBY & HOEFER, P.A.
BY: BENJAM£N P. MUSTIAN, ESQ.
TRACEY C. GREEN, ESQ.
930 Richland Street
P.O. Box 8416
Columbia, SC 29202
For Defendant NEXSEN PRUET.
McConnell:
By: ANDREW A. M_ATHIAS, ESQ.
JAMES D. GALYEAN, ESQ.
P.O. Box 10648
Greenville, SC 29603
For Other State J.C. NICHOLSON, Ill
Defendants:
Assistant Attorney General
P.O. Box 11549
Columbia, SC 29211
Court Reporter: DANIEL E. MAYO, RDR
Certified Realtime Reporter
901 Richland Street
Columbia, SC 29201
Stenotype/Computer-Aided Transcription
20a
Sellars - Direct
[14] Amendment number 1 which he crafted.
Q. Amendment number 1, please tell the court what
Amendment number 1 A. Usually we draft bills, you go in your office and
come up with the wonderful dreams of what a bill
should be and you put in a bill. In this case we didn’t
necessarily have a bill, but Amendment number 1 was
the vessel that appears before us that Q. How was that designed, do you know?
A. I just - you know, I was in the map room every
day and I was the person who would go in and attempt
to talk with, you know, staff, or even pull down what
was being drawn daily. I recall one instance going in
on a, I can’t recall the date, the log should be able
to tell you, but I went in and it was the day after
Representative Clemmons and Harrison and Harrell
had been in, and the soon thereafter we had Amendment number 1.
Q. Did you participate in drawing the Amendment
number 1?
Q. Do you know anybody that did?
A. No.
Q. And so it appears - well, isthere a name
attached to 3?
A. I believe it’s Clemmons.
21a
Q. So Representative Clemmons, he is from where?
A. Horry County.
[15] Q. And he is white or African American?
A. White.
Q. And he is a Republican or Democrat?
A. A Republican.
Q. Okay. And that 3, was that just the House or
was that House and Congress.
A. No, it was just the House. We treated Congress
like a separate bill.
Q. That would have been a A. That would have been a separate Q. So let’s talk about 3, which is just the House.
And you indicated a process where you would propose
amendments. What kind of amendments were you
proposing?
A. Various amendments. You know, I recall I tried
to implement what we heard in public hearings.
Q. Which was?
A. Which, for example, Anderson County, the
Mayor of Anderson testified that he wanted to try
to keep his community whole. And the City of
Anderson has a decent percentage of black voting-age
population, and I made efforts, many efforts, to keep
that community whole. Instead, what was drawn was
the African American population in those districts was
- was fragmented and put into various districts. I
specifically recall many instances where we tried to
deal with my colleague Mia Butler’s district and the
fact she was able to win in a [16] non-majority district,
22a
and those efforts were rebuffed. I mean, there were a
series of amendments. I tried to deal with my own
district and had some dialogue with Lonnie Hosey,
who is another African American, a member of the
African American Black Caucus. We addressed our
district and that was rebuffed.
Anything that would take a district, if you had
a black voting-age population of let’s say 95 and
you want to take it to 94-and-a-half, that would be
tabled. They 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.
Q. What?
A. Resegregate.
Q. Okay. And when the subcommittee was considering an amendment by you or someone that would be
proposing an amendment which would reduce black
voting-age population in a district, even keeping it
above 50, were any other criteria considered such A. No.
Q. - compactness or A. No.
Q. Communities of interest?
A. No. No, we did not deal with compactness,
communities of interest. We did at some time deal
with incumbency. We did [17] not deal with the public
comments or testimony that we heard. We did a very
good job of window dressing. The process was sound;
however, when it came to the implementation the only
factor that was used was race.
23a
Q. Now, you indicated a moment ago that there was
a process where an amendment was proposed and you
mentioned the name Patrick Dennis. Who is he?
A. Patrick Dennis is our chief counsel of the
judiciary committee.
Q. The judiciary committee?
A. Correct.
Q. And you indicated he would communicate some
information A. Any bill we put up, any amendment that we put
up, it did have the black voting-age population on it
and Patrick would highlight or just point, just giving
information, purely- he was not making a decision, he
was just purely giving information to the chairman.
The chairman would then move to table. He had three
votes, and it didn’t matter what the amendment was,
if that black voting-age population went down a
percentage point he would Qo
And did you ever talk to Mr. Clemmons about
this?
A. At length.
Q. And his reasoning for doing that A. I talked to Mr. Clemmons. I even talked to attempted to talk to House counsel about this, and he
did not have a [18] reason. I felt as if he was
perverting the law. I even told him that on numerous
occasions. But he did not - he did not - he just said
this is what he was going to do.
Q. Mr. Clemmons did?
A. Correct.
24a
Q. Did you attempt to discuss with him Mia Butler’s
district?
A. I did.
Q. And how she was getting reelected with a 31
percent African American A. And I went one step further. Not only was she
getting reelected, there was a gentleman before her,
Anton Gunn, who had come very close to winning six
years ago but did win four years ago in a district that
was that same makeup. We talked about there was even instances where I talked about a coalition district
where we pull case law and talk about putting African
Americans and minorities together to create these
majority-minority districts, I talked to counsel about
that. We even had sidebars with counsel.
Q. Counsel being who?
A. That’s where I get a little confused. Counsel
being those - the defendants.
Q. The gentleman right here?
A. The young guy with gray hair, yes.
Q. That would be Bobby Stepp?
A. Yes.
[23] an objection?
(There was a pause in the proceedings)
MR. HARPOOTLIAN: This is it.
(Audio played)
Q. (MR. HARPOOTLIAN) Is that you?
A. Yes.
(Audio played)
25a
Q. Mr. Clemmons is about to respond to you?
A. Maybe.
(Audio played)
Q. So that is a discussion between you and Mr.
Clemmons on the record in the subcommittee about an
amendment you made that could keep Barnwell
whole, is that correct?
A. Correct.
Q. And his response to you is that if you do that to
make that work you decrease Mr. Hosey’s district A. I took his district from 52-and-a-half to 53
percent or 50.1 - 50.5, excuse me.
Q. Okay. To 50.67?
A. Yes.
Q. And he says you can’t do that?
A. Correct.
Q. And you can’t do that why?
A. He didn’t give a why in anything he did. There
was never a why given in - and my reason for
attempting to ask our [24] hired counsel for a legal
opinion and take a break was so that we could actually
get a why. But that never was given. The only issue
that Alan Clemmons ever had in his mind, as you
listen to the tape, he did not discuss public testimony,
he did not discuss communities of interest, the only
thing he talked about was race. That’s the only thing
he ever talked about. That was his only basis for
tabling anything that came up in our subcommittee.
Q. How many people were on the subcommittee?
A. Five.
26a
Q. And you indicate two African Americans?
A. Correct. Karl Allen was there along Q. Okay. And the other members of this committee,
when he made a motion to table, is there any
discussion?
A. I never had any discussion with them. It was
rare. Most of my discussion, which if you listen to all
six hours or eight hours of tape, which got somewhat
heated at times, was with the chairman.
Q. And when you indicated on the record, you said
if you balance that with what we heard this morning
about the simple fact of people wanted people to keep
Barnwell County whole, this line that you can’t take
black people’s percentages down is not actually what
the law says, was there any response, either on the
record or off the record, about keeping Barnwell
County whole?
[25] A. There was public testimony about keeping Q. I’m talking about from Mr. Clemmons when you
said keep it whole.
A. No. And even - there was not even a comment
from counsel about the principles.
Q. Okay. Did you make Amendment number 13?
A. Yes.
Q. Okay. Can we see Amendment number 13?
A. This is myQ. Do you - how do you get those blue arrows off
there? There we go. Do you recognize this map?
A. Yes. This is Joe Jefferson’s district, I believe.
27a
Q. Which is district number what?
A. Joe is 102.
Q. Okay. And what was - what was your issue
there?
A. I mean, all of them were - I mean, in many
instances I was trying to keep communities together,
I was going to the members, to the incumbent, listening to what they had to say, because incumbency is a
major issue, and listening to what we heard in our
public testimony and draft districts based on that.
Q. And what was your issue with communities of
interest in this district, do you remember?
A. Yes. I was - I know that this one had to do
with Patsy Knight, as well. She was 97, I believe, in
Dorchester County. [26] And all I was - all I was
attempting to do on this map, all I was attempting to
do in this amendment, like I was trying to do in many
other instances, and I thought we were going to have
success but we never did, was keep communities of
interest together, areas that had been represented by
incumbents for a period of time who wanted to
maintain their representative, do that.
And the most ironic thing is that in my consideration race wasn’t a factor. In drawing these maps
race wasn’t a factor. I was cognizant of BVAP,
understanding that we are a voting rights state.
However, that was never the predominant factor. But
when we went to committee, regardless of what
amendment I put up, the only issue, nine times out of
ten, just as you heard on eight, the only issue that was
discussed was race. And I think that the most - I
think the most important thing that Alan Clemmons
continuously said was that if the BVAP went down
28a
that it was a complete nonstarter. So it shows his
hard, fast line.
Q. Okay. Now, you were present on May 24, 2011
at - for a subcommittee meeting. This would be audio
from Exhibit number 66, RWH022017. How about if
you can play that. Listen to it and what it is, okay?
(Audio played)
Q. Is that Mr. Young speaking?
A. Tom Young.
[29] have been in there.
Q. Okay. And let me make sure I’ve got the copy.
Do we have a marked copy?
MR. STEPP: Defendant’s Exhibit number 1.
MR. HARPOOTLIAN: It’s Defendant’s Exhibit
number 1 but also Plaintiffs Exhibit number 70.
We only have two copies.
MR. KENNEY: There’s two up there.
BY MR. HARPOOTLIAN:
Q. I’m going to hand the witness a copy. This is
taken from Defendant’s Exhibit number 1, it’s
RWH00594, 595, 596, and 597. Now, this is part of a
notebook you were given?
A. Yes.
Q. And who gave it to you?
A. Staff and counsel may have helped create it.
Q. And this was to be what the - what was this to
represent to you?
29a
A. I guess it was the law that we were supposed to
use to draw the plan.
Q. And on the first page, 595, it says Department of
Justice guidelines concerning redistricting under
Section 5 of the Voting Rights Act?
A. Correct.
Q. Let me take you back to page 0596, analysis
of plans. And let me read a portion of it to you and see
if there was any [30] explanation or whether that was
applied. It says, as noted above there are two necessary components of the analysis of whether a proposed
redistricting plan meets the Section 5 standard. The
first is a determination that jurisdiction has met its
burden of establishing the plan was adopted free of
any discriminatory purpose. The second is a determination that the jurisdiction has met its burden of
establishing the proposed plan will not have a
retrogressive effect. Right?
A. Correct.
Q. And then it goes down to describe retrogressive
effect on the same page, second column, about twothirds the way down. An analysis of whether the
jurisdiction has met its burden of establishing the
proposed plan would not result in a discriminatory or
retrogressive effect starts with a basic comparison of
the benchmark and proposed plans at issue using
updated voting census data in each. It goes on to say,
a proposed plan, at the top of the next column, is
retrogressive under Section 5 if its net effect would be
to reduce minority voters’, quote, effective exercise of
the electoral franchise when compared to the
benchmark plan. Right?
A. Correct.
30a
Q. And then it goes on to say, in determining
whether the ability to elect exists in the benchmark
plan and whether it continues in the proposed plan,
the Attorney General does not rely on any predetermined or fixed demographic percentage at [31] any
point in the assessment. Rather, in the Department’s
view this analogous determination requires a
functional analysis of electoral behavior within the
particular jurisdiction or election district.
A. Correct.
Q. Now, that point about retrogression, was this
ever pointed out A. I pointed it out in our committee. And the reason
that I pointed it out is because in most of my
amendments, and not all of my amendments, I
actually used performance data. I didn’t just use raw
numbers, I talked to - first I talked to Representative
Clemmons about this fixed number that he and
counsel came up with that they weren’t going to go
below and that they had their own definitions that we
kind of made up as we went.
But then I started talking to them about performance data and how African Americans and minority
voters actually turned out. And just because you have
a certain BVAP doesn’t necessarily indicate the
performance. So we went through this whole analysis
of performance and looked at performance numbers in
various districts. However, I was the only person that
ever mentioned that in committee, and the only time
that it was mentioned was when I mentioned it, and it
was never used in any analysis on whether or not to
table anything.
I think if you listen to the tape for hours upon hours
the [32] only thing that they say when explaining a
31a
tabling motion as to how you get rid of an amendment
is race. Race, race, and more race.
Q. So in terms of performance, or this criteria that
the Justice Department provides which - let me read
it again to make sure that I’m using the right terms,
because I will mess it up. It says, the Attorney
General does not rely on any predetermined or fixed
demographic percentages. Did your committee in the
House rely on any fixed or predetermined demographic percentages?
A. Yes.
Q. Okay. And you had this document, all members
of the House had this -- all the members of your
committee had this document, correct?
A. Counsel had the document, yes, but nothing ever
changed. Q. Did you question specifically this
document?
A. Yes.
Q. And did you point that out to the other members
of the subcommittee?
A. Yes.
Q. And their response was?
A. Race. I mean, if the BVAP was lower this is what
we’re going to do, table. That was it.
Q. Did they ever distinguish or explain how that
was consistent or inconsistent with the guidelines you
got?
[33] A. No. Before I - my blood boiled even more, I
attempted to get some clarification from counsel off
the record, and that clarification never happened
either.
32a
Q. So when you - you proposed in this amendment
to reduce the BVAP, black voting-age population in
Mr. Jefferson’s district?
Ao
Correct.
Was he consulted on that?
A.
Yes.
Q. Did he agree with that?
A. Yes.
Q. And the reason to reduce it was to keep A. Kept communities whole. We looked at incumbency, protecting incumbency, and we looked at
districts around him and opportunity for African
Americans, especially in 97, which is a very poor rural
area, encompasses Georgetown, Hardeeville Hardeeville, excuse me, I can’t remember which one,
and impacted the 9th District to allow them opportunity to continue to elect the person of their choice.
Q. So you considered turnout?
A. Of course. I used performance.
Q. That would be the same thing.
Q. Compactness, was that an issue?
A. Correct.
33a
APPENDIX E
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Case No.: 3:ll-cv-03120-HFF-MBS-PMD
VANDROTH 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,
Plaintiffs,
V.
THE STATE OF SOUTH CAROLINA, NIKI~ R. HALEY,
in her capacity as Governor, GLENN F. MCCONNELL,
in his capacity as President Pro Tempore of the
Senate and Chairman of the Senate Judiciary
Committee, 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,
Defendants.
AFFIDAVIT OF THE HONORABLE
MIA BUTLER GARRICK
I, Mia Butler Garrick, being duly sworn, state as
follows:
1. I
serve in the South Carolina House of
Representatives representing House District 79.
34a
My House District as adopted during the 2011
Redistricting is located in the Northeast part of
Richland County. Prior to Redistricting, House
District 79 included part of Kershaw County.1
2. I have only served one term in the South
Carolina House of Representatives. In 2010, I entered
the race for House District 79 after the incumbent,
Anton Gunn, decided he to take a position to work
for the Obama Administration. I had only two weeks
to prepare for the Special Primary and roughly five
weeks to campaign for the General Election. I was
obviously aware that District 79 included Northeast
Richland County and Southwest Kershaw County, but
I was otherwise only vaguely familiar with the
District’s demographics. After winning the election,
I became more familiar with District 79 and came
to appreciate its diversity. Prior to this recent Redistricting, African American voters comprised about
34.7 percent of the population. District 79 was also one
of the fastest growing House Districts in the state and
was still growing at a phenomenal rate.
3. After the 2010 Census numbers were released,
House Judiciary Chairman, Rep. Jim Harrison (RRichland) approached me about my District. He
seemed acutely interested in District 79. He said
that because of District 79’s growth over the last
decade, I would have to "shed" approximately 21,00022,000 people. He suggested that because I represented approximately 21,000-22,000 people in
Kershaw County it made sense to take me out of
1 I have attached as Exhibit A what I believe to be a fair
and accurate depiction of House District 79 prior to the 2011
Redistricting.
35a
Kershaw County and keep the Richland County portion of my District the way it was. I agreed.
4. Shortly thereafter, on April 11, 2011, I went
into the House Map Room to propose a map that
reflected what Chairman Harrison and I discussed.
During my first visit to the Map Room, Chairman
Harrison, House Judiciary Committee legal counsel
Patrick Dennis, Thomas Hauger, Rep. Rick Quinn (RLexington), and Reggie Lloyd were present. We all
discussed the fact that it made sense to take me out of
Kershaw County since I had to shed approximately the
same number of people I represented there in order to
bring District 79 into population deviation. We also
spoke at length about the importance of keeping the
Richland side of the District "whole" and including the
newer portion of the Lake Carolina community where
I live, so that my entire community would be intact.
5. I believe Lake Carolina is a community of
interest that should be unified within a single House
District. By "community of interest" I mean a cohesive
neighborhood with similar issues and needs. For
example, our children attend the same schools and
the issues that are important to my neighbors and
constituents are basically the same ones that are
important to me. Many of us shop, dine, and gather for
community events at the town center located in the
heart of Lake Carolina, which has also been drawn out
of District 79.
6. We all agreed that this approach made perfect
sense and drew a proposed map that took House
District 79 out of Kershaw County entirely, added the
previously excluded portion of the Lake Carolina
community to the District, and added the neighboring
community of Crickentree because these areas also
36a
share a community of interest with the core of
District 79.
7. This proposed map raised my BVAP to approximately 42 percent. This made sense, as it was a
"natural" result of removing Kershaw County from
District 79. I was pleased that we were able to make
the Richland County portion of the District more
cohesive and compact.2 I also believe the proposal we
drew accurately reflected the community I represent:
a mixed-race suburb of Columbia. Everyone who was
present at the meeting that day also agreed that this
approach made sense. I later discovered that members
of the Republican leadership had other plans for
District 79.
8. A couple of weeks later, I was approached by
Rep. Alan Clemmons (R-Horry), Chairman of the
Election Law Subcommittee, in the Statehouse lobby.
He said, "Hey Mia, we’re working to get your BVAP
(black voting age population) up in your District, but
we’ve got to tweak it some more to get it just right." I
was stunned because I had neither asked him to do
that, nor had I ever spoken with Rep. Clemmons prior
to that about my district or proposed map. I responded,
"Thanks Alan, but I don’t want y’all to do that. Why
would you think that I do?" He looked puzzled, but
2 I have attached as Exhibit B what I believe to be a fair and
accurate map depicting House District 79 and adjacent districts
as drawn in the original House proposal introduced in the
Election Law Subcommittee. I have also attached as part of this
exhibit a demographic summary of all the House Districts in this
proposal. I this demographic summary was generated pursuant
to the House Preclearance Submission for the House Plan. I
believe it is a fair and accurate representation of the proposal for
House District 79 that I agreed to during my meeting in the
House Map Room.
37a
smiled and said, "I thought that’s what you wanted." I
replied, "No, I don’t."
9. During the next legislative day, I walked over
to Chairman Harr/son’s desk to talk with him about
my conversation with Rep. Clemmons. I told Chairman Harrison that I appreciated the diversity of my
District and did not want to artificially increase my
BVAP. His response was that he might not have a
choice because "the lawyers" were advising him that
was probably what they were going to have to do.
When I asked who "the lawyers" were, he would not
give me a clear answer. He just kept saying that "the
lawyers" were advising that this might "have to
happen." I assumed he was referencing Patrick Dennis
and other House legal staff, but I never was able to get
a clear answer about which lawyers were giving this
advice.
10. It was not until the final House Judiciary
Committee meeting on June 6, 2011, that Rep.
Clemmons’ prediction came to fruition. I was not
able to attend the meeting, but I received a call from
Rep. James Smith (D-Richland) who was present. He
described what I later learned was Amendment
#35, introduced by Chairman Harrison, which would
increase the BVAP of District 79 to 52 percent by
trading mixed-race areas for areas containing a
higher concentration of black voters,a The other
members of the committee were led to believe that I
had, in fact, requested this change to increase my
BVAP. This was not true. Rep. Smith, accurately,
3 I have attached as Exhibit C what I beheve is a fair and
accurate map depicting Amendment #35 and a demographic
summary created by the House of Representatives as part of their
Preclearance Submission.
38a
believed that I opposed this Amendment and called me
just prior to the vote. I shared with Rep. Smith exactly
what I had already shared with Reps. Harrison and
Clemmons. He voiced my objections to the committee
on my behalf, but they ignored my objections and
passed their Amendment anyway.
11. Amendment #35 abruptly and significantly
changed District 79 without any justification or consideration for those impacted by it. This Amendment
took approximately half of my neighborhood out of
the District and placed it in Rep. Boyd Brown’s (DFairfield) District. The manner in which it separates
the northern portion of my neighborhood from the
southern portion, makes no sense. Not only does it
split the community down the middle of the Lake, but
it also splits neighborhood blocks themselves.4 Rep.
Brown’s district (HD-41) has no logical connection
and shares no common interest with the portion of
Northeast Richland County taken from District 79
as a result of Amendment #35. This does a great
disservice to both his constituents and mine.
12. The only explanation for dividing my neighborhood in half in what seems an otherwise arbitrary
manner is to exclude some of the white voters in my
41 have attached as Exhibit D a series of maps that I believe
are a fair and accurate depiction of how this Redistricting Plan
divides my neighborhood. These maps were generated using
Google Maps, a free and publically available software service,
and a House District overlay that was created by the House of
Representatives and made publically available on their website.
These images show a satellite view of the split between Districts
79 and 41 and demonstrate the arbitrary manner in which the
neighborhood was divided. The original proposal for District 79
that I supported would include the remained of Lake Carolina
south of Kelly Mill Road and east of Hard Scrabble Road, among
other geography.
39a
neighborhood from District 79. Amendment # 35 also
reaches out and adds new, predominantly AfricanAmerican neighborhoods to District 79.
13. House Republicans, led by Reps. Harrison and
Clemmons, deliberately sought to split my community
in order to "bump up" the District’s BVAP to 52%
and create a majority-minority district. I am unaware
of any legal or statistical analysis done to justify
using race to pack my district with additional BVAP.
Rep. Harrison never answered my request for an
explanation as to which "lawyers" deemed this
necessary. I am a black South Carolinian. I was able
to win election to the House when District 79 was 34
percent black. Prior to my election, then-Rep. Anten
Gunn, who is also black, was elected twice. Both Anten
and I earned the support of white and black voters to
get elected. There was also never any showing as to
why or how a packed District 79 benefits the District’s
communities, its constituents, or the State as a whole.
14. During the floor debate on June 14, 2012, I
spoke out against the Republican packing plan and
urged the House to adopt Floor Amendment #25 which
would restore District 79 to the original proposal that
kept my community whole. As I explained on the floor:
There are a number of reasons why this is wrong.
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 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.
40a
15. As a result of my floor speech, I got a lot of
feedback from my colleagues--Republicans and
Democrats alike. Former-Rep. Dan Cooper (RAnderson) and others teased me about being the only
African-American they have ever met, who didn’t
appreciate a higher BVAP. Several House and Senate
colleagues even told me that House Republicans
were perplexed by my request to keep my community
whole and maintain the diversity it had. Some even
tried to solicit the help of my Democratic colleagues
to "talk to me" and help me "understand" how the
Republicans’ map benefitted me so I would not fight it
or bring unnecessary attention to it. I kept wondering
why packing District 79 was so important to the
Republicans and why my input did not seem relevant
or welcomed by them.
16. But it was Rep. Thad Viers (R-Horry) who let
me in on the Republican redistricting strategy during
our floor debates on redistricting. At that time, Rep.
Viers was planning to run for the new Seventh
Congressional District. We were having a very casual
light-hearted discussion about his party’s agenda in
general, since I had openly taken issue with the
divisiveness of some of the Republican Party’s top
agenda items and the amount of time the House
was wasting on them. We were talking about race
and I shared my view that their priorities seemed to
be an intentional effort to divide South Carolinians
along racial lines. As the conversation turned to
redistricting, Rep. Viers told me that race was a
very important part of the Republican redistricting
strategy. At first, I thought he was joking because of
the lighthearted nature of the conversation, but then I
realized he was being candid with me. Rep. Viers
said that Republicans were going to get rid of white
Democrats by eliminating districts where white and
41a
black voters vote together to elect a Democrat. He
said the long-term goal was a future where a voter
who sees a "D" by a candidate’s name knows that
the candidate is an African-American candidate. As
I carefully considered what they were doing to my
District, the "game-plan" Rep. Viers described suddenly made perfect sense. And aider my proposed
Amendment came closer to passing than any other
Amendment that day, Rep. Viers whispered in my ear,
"that was way too close. I’ve gotta keep my eyes on
you." Then he chuckled and said, "Well now, South
Carolina will soon be black and white. Isn’t that
brilliant?"
17. I subsequently realized that my Democratic
colleagues were also complicit in this racial Gerrymander. Most of them did not seem to understand
my objection and would never take issue with a higher
BVAP. The Democratic Caucus’ view in large part
appears to be motivated by individual and collective
short-sightedness. Many of my Democratic colleagues
believed their districts were "better than [they]
thought they would be" and that "this redistricting
plan is about the best that [they] could have hoped
for." I understood these comments to be motivated
by their desire~which is common knowledge among
Republicans--to have as many black voters as
possible.
18. Several of my Democratic colleagues have tried
to convince me that the Republicans’ map benefits me
greatly, by "strengthening" the District so that I have
a better, more secure chance of keeping the seat "as
long as I want." If anything, they suggest that I need
only be concerned about Primary opposition. This selfinterest appears to be the most compelling motivation
for the majority of them. I believe this hurts all of our
42a
voters by separating us along purely racial lines and
weakening competition so that incumbents become
complacent in their "safe" districts.
19. I remember when Rep. Bill Clyburn (D-Aiken,
Edgefield) came to me aider he heard me speak about
my amendment and why it was necessary. He said he
did not know that upping my BVAP would actually
hurt my District. And although he and other Democrats seemed shocked that I would actually propose or
support anything other than a higher BVAP, he told
me he would support my efforts to restore my District
back to the original proposed version.
20. I do not believe that our Constitution or the
Voting Rights Act permits the segregation of our
citizens, which is exactly what is occurring under this
Redistricting Plan. We need more District 79s, not
fewer. I also do not believe I am a rarity, since my
predecessor also won District 79 twice before did. This
Redistricting Plan threatens to once again segregate
our state along racial lines. This is bad for my
constituents and it is bad for black voters all over
South Carolina. I believe the Republican strategy is
regressive and illegal. Sadly, I also believe my
Democratic colleagues have gone along with this
scheme by trading the political power of the African
American community for the "safety" of a higher
BVAP or the "security" of a majority-minority district.
We have diluted and diminished the natural diversity
of our state in a manner that is likely to relegate
African-American voters to a "permanent minority"
status.
21. I respectfully submit the above testimony for
consideration by the Court and ask that the Court
strike down this unconstitutional racial gerrymander.
43a
/s/Mia Butler Garrick
Affiant
Sworn to and subscribed before me
This 22nd day of February 2012.
Virginia N. [illeoblel
Notary Public of South Carolina
My Commission Expires: 11/6/2016
44a
APPENDIX F
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Case No.: 3:11-cv-03120-HFF-MBS-PMD
VANDROTH 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,
Plaintiffs,
V.
THE STATE OF SOUTH CAROLINA, NIKKI R. HALEY,
in her capacity as Governor, GLENN F. McCONNELL,
in his capacity as President Pro Tempore of the
Senate and Chairman of the Senate Judiciary
Committee, 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,
Defendants.
AFFIDAVIT OF THE HONORABLE
MIA BUTLER GARRICK
I, Mia Butler Garrick, being duly sworn, state as
follows:
1. I serve in the South Carolina House of
Representatives representing House District 79.
45a
My House District as adopted during the 2011
Redistricting is located in the Northeast part of
Richland County. Prior to Redistricting, House
District 79 included part of Kershaw County.1
2. I have only served one term in the South
Carolina House of Representatives. In 2010, I entered
the race for House District 79 after the incumbent,
Anton Gunn, decided he to take a position to work
for the Obama Administration. I had only two weeks
to prepare for the Special Primary and roughly five
weeks to campaign for the General Election. I was
obviously aware that District 79 included Northeast
Richland County and Southwest Kershaw County, but
I was otherwise only vaguely familiar with the
District’s demographics. After winning the election,
I became more familiar with District 79 and came
to appreciate its diversity. Prior to this recent Redistricting, African American voters comprised about
34.7 percent of the population. District 79 was also one
of the fastest growing House Districts in the state and
was still growing at a phenomenal rate.
3. After the 2010 Census numbers were released,
House Judiciary Chairman, Rep. Jim Harrison (RRichland) approached me about my District. He
seemed acutely interested in District 79. He said
that because of District 79’s growth over the last
decade, I would have to "shed" approximately 21,00022,000 people. He suggested that because I represented approximately 21,000-22,000 people in
Kershaw County it made sense to take me out of
1 I have attached as Exhibit A what I believe to be a fair
and accurate depiction of House District 79 prior to the 2011
Redistricting.
46a
Kershaw County and keep the Richland County portion of my District the way it was. I agreed.
4. Shortly thereafter, on April 11, 2011, I went
into the House Map Room to propose a map that
reflected what Chairman Harrison and I discussed.
During my first visit to the Map Room, Chairman
Harrison, House Judiciary Committee legal counsel
Patrick Dennis, Thomas Hauger, Rep. Rick Quinn (RLexington), and Reggie Lloyd were present. We all
discussed the fact that it made sense to take me out of
Kershaw County since I had to shed approximately the
same number of people I represented there in order to
bring District 79 into population deviation. We also
spoke at length about the importance of keeping the
Richland side of the District "whole" and including the
newer portion of the Lake Carolina community where
I live, so that my entire community would be intact.
5. I believe Lake Carolina is a community of
interest that should be unified within a single House
District. By "community of interest" I mean a cohesive
neighborhood with similar issues and needs. For
example, our children attend the same schools and
the issues that are important to my neighbors and
constituents are basically the same ones that are
important to me. Many of us shop, dine, and gather for
community events at the town center located in the
heart of Lake Carolina, which has also been drawn out
of District 79.
6. We all agreed that this approach made perfect
sense and drew a proposed map that took House
District 79 out of Kershaw County entirely, added the
previously excluded portion of the Lake Carolina
community to the District, and added the neighboring
community of Crickentree because these areas also
47a
share a community of interest with the core of
District 79.
7. This proposed map raised my BVAP to approximately 42 percent. This made sense, as it was a
"natural" result of removing Kershaw County from
District 79. I was pleased that we were able to make
the Richland County portion of the District more
cohesive and compact.2 I also believe the proposal we
drew accurately reflected the community I represent:
a mixed-race suburb of Columbia. Everyone who was
present at the meeting that day also agreed that this
approach made sense. I later discovered that members
of the Republican leadership had other plans for
District 79.
8. A couple of weeks later, I was approached by
Rep. Alan Clemmons (R-Horry), Chairman of the
Election Law Subcommittee, in the Statehouse lobby.
He said, "Hey Mia, we’re working to get your BVAP
(black voting age population) up in your District, but
we’ve got to tweak it some more to get it just right." I
was stunned because I had neither asked him to do
that, nor had I ever spoken with Rep. CIemmons prior
to that about my district or proposed map. I responded,
"Thanks Alan, but I don’t want y’all to do that. Why
would you think that I do?" He looked puzzled, but
21 have attached as Exhibit B what I believe to be a fair and
accurate map depicting House District 79 and adjacent districts
as drawn in the original House proposal introduced in the
Election Law Subcommittee. I have also attached as part of this
exhibit a demographic summary of all the House Districts in this
proposal. I this demographic summary was generated pursuant
to the House Preclearance Submission for the House Plan. I
believe it is a fair and accurate representation of the proposal for
House District 79 that I agreed to during my meeting in the
House Map Room.
48a
smiled and said, "I thought that’s what you wanted." I
replied, "No, I don’t."
9. During the next legislative day, I walked over
to Chairman Harrison’s desk to talk with him about
my conversation with Rep. Clemmons. I told Chairman Harrison that I appreciated the diversity of my
District and did not want to artificially increase my
BVAP. His response was that he might not have a
choice because "the lawyers" were advising him that
was probably what they were going to have to do.
When I asked who "the lawyers" were, he would not
give me a clear answer. He just kept saying that ~the
lawyers" were advising that this might "have to
happen." I assumed he was referencing Patrick Dennis
and other House legal staff, but I never was able to get
a clear answer about which lawyers were giving this
advice.
able to attend the meeting, but I received a call from
~. James Smith
.) who was
3 I have attached as Exhibit C what I believe is a fair and
accurate map depicting Amendment #35 and a demographic
summary created by the House of Representatives as part of their
Preclearance Submission.
49a
11. Amendment #35 abruptly and significantly
changed District 79 without any justification or consideration for those impacted by it. This Amendment
took approximately half of my neighborhood out of
the District and placed it in Rep. Boyd Brown’s (DFairfield) District. The manner in which it separates
the northern portion of my neighborhood from the
southern portion, makes no sense. Not only does it
split the community down the middle of the Lake, but
it also splits neighborhood blocks themselves? Rep.
Brown’s district (HD-41) has no logical connection
and shares no common interest with the portion of
Northeast Richland County taken from District 79
as a result of Amendment #35. This does a great
disservice to both his constituents and mine.
12. The only explanation for dividing my neighborhood in half in what seems an otherwise arbitrary
manner is to exclude some of the white voters in my
41 have attached as Exhibit D a series of maps that I believe
are a fair and accurate depiction of how this Redistricting Plan
divides my neighborhood. These maps were generated using
Google Maps, a free and publically available software service,
and a House District overlay that was created by the House of
Representatives and made publically available on their website.
These images show a satellite view of the split between Districts
79 and 41 and demonstrate the arbitrary manner in which the
neighborhood was divided. The original proposal for District 79
that I supported would include the remained of Lake Carolina
south of Kelly Mill Road and east of Hard Scrabble Road, among
other geography.
50a
neighborhood from District 79. Amendment # 35 also
reaches out and adds new, predominantly AfricanAmerican neighborhoods to District 79.
13. House Republicans, led by Reps. Harrison and
Clemmons, deliberately sought to split my community
in order to "bump up" the District’s BVAP to 52%
and create a majority-minority district. I am unaware
of any legal or statistical analysis done to justify
using race to pack my district with additional BVAP.
Rep. Harrison never answered my request for an
explanation as to which "lawyers" deemed this
necessary. I am a black South Carolinian. I was able
to win election to the House when District 79 was 34
percent black. Prior to my election, then-Rep. Anton
Gunn, who is also black, was elected twice. Both Anton
and I earned the support of white and black voters to
get elected. There was also never any showing as to
why or how a packed District 79 benefits the District’s
communities, its constituents, or the State as a whole.
14. During the floor debate on June 14, 2012, I
spoke out against the Republican packing plan and
urged the House to adopt Floor Amendment #25 which
would restore District 79 to the original proposal that
kept my community whole. As I explained on the floor:
There are a number of reasons why this is wrong.
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 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.
51a
52a
I believe this hurts all of our
53a
voters by separating us along purely racial lines and
weakening competition so that incumbents become
complacent in their "safe" districts.
19. I remember when Rep. Bill Clyburn (D-Aiken,
Edgefield) came to me after he heard me
about
amendment and it was
20. I do not believe that our Constitution or the
Voting Rights Act permits the segregation of our
citizens, which is exactly what is occurring under this
Redistricting Plan. We need more District 79s, not
fewer. I also do not believe I am a rarity, since my
predecessor also won District 79 twice before did. This
Redistricting Plan threatens to once again segregate
our state along racial lines. This is bad for my
constituents and it is bad for black voters all over
South Carolina. I believe the Republican strategy is
regressive and illegal. Sadly, I also believe my
Democratic colleagues have gone along with this
scheme by trading the political power of the African
American community for the ~safety" of a higher
BVAP or the "security" of a majority-minority district.
We have diluted and diminished the natural diversity
of our state in a manner that is likely to relegate
African-American voters to a "permanent minority"
status.
21. I respectfully submit the above testimony for
consideration by the Court and ask that the Court
strike down this unconstitutional racial gerrymander.
54a
/s/Mia Butler Garrick
Affiant
Sworn to and subscribed before me
This 22nd day of February 2012.
Virginia N. [illegible]
Notary Public of South Carolina
My Commission Expires: 11/6/2016
55a
APPENDIX G
EXHIBIT A
Explanation of Redistricting Process, 36-37,
RWH002043-44
*
**
In addition, the plan complies with traditional redistricting criteria as adopted by the Election Laws
Subcommittee. In particular, each of the 124 districts
is contiguous and compact in form. The districts do
not have bizarre shapes, but follow census geography
and prior configurations of the districts which reflect
the state’s most recent ongoing population shifts.
Additionally, the plan considers communities of
interest where possible, in particular by maintaining
county, municipal and precinct boundaries where
possible.
With respect to the impact of H. 3991 on minorities,
the plan passed by the South Carolina House of
Representatives 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 plan in 2003 and as
compared to the 21 districts which existed in the
Benchmark plan following the 2010 Census, H. 3991
contains 30 districts with majority black voting age
and non-Hispanic black voting age populations. In
order to achieve population equality while maintaining these majority-minority districts, the South
Carolina House of Representatives modified district
lines by adding population from adjoining areas. As a
result, of the 29 majority-minority districts in
existence in 2000, the House was able to maintain 28
majority-minority districts. The only exception was
56a
District 116, which had naturally retrogressed to a
NHBVAP of 42.03%, but was within the acceptable
population deviation. Although efforts were made to
reestablish District 116 as a majority-minority
district, the House concluded that it could not be
drawn in a way that it would include compact minority
population communities comprising a majority of the
district.
However, the House did elevate two other districts
to majority-minority status: District 79 and District
103. District 79 in Richland in 2000 had a BVAP of
22.23% and a NHBVAP of 22.16%. However, in 2010,
those numbers grew to 34.79% and 34.70% respectively, but District 79 was overpopulated by
approximately 21,700 people. By adjusting the district
boundaries, the House brought District 79 within
deviation and also established it with a BVAP of
51.63% and a NHBVAP of 51.44%. As well, District
103 in Georgetown and Williamsburg counties only
had a BVAP of 49.30% and a NHBVAP of 49.09% in
2000. As a result of the 2010 Census, the district had
fallen to a BVAP of 48.48% and a NHBVAP of 48.45%,
but was underpopulated by more than 6,700 people.
Based on the plan proposed in H. 3991, the House of
Representatives elevated District 103 to majorityminority status, such that its BVAP is 51.98% and
NHBVAP is 51.57%. Thus, the House plan in H. 3991
increases the number of majority-minority districts
from 29 to 30.
As a result of these changes, the House asserts that
H. 3991 does not dilute racial or ethnic minority
strength and does not have the intent or effect of
dispersing or concentrating minority candidates in a
manner that prevents minorities from electing their
candidates of choice. To the contrary, and in
57a
accordance with the VRA, the laws of the United
States of America, the laws of the State of South
Carolina, and the public policy of this state, the
proposed redistricting plan neither has the purpose
nor the effect of denying or abridging any U.S. citizen’s
right to vote on account of race, color, or status as a
member of a language minority group. Moreover, the
plan does not decrease the absolute the absolute
number of representatives which a minority group has
a fair chance to elect. Rather, the minority voting
strength under H. 3991 enhances the position of racial
minorities with respect to their effective exercise of the
electoral franchise and, therefore, does not constitute
retrogression and does not have the effect of diluting
or abridging the right to vote on account of race within
the meaning of Section 5.
58a
APPENDIX H
[LO0~)]
Office of the Speaker
South Carolina House of Representatives
P. 0. Box 11867
Columbia 29211
(803) 734-3125
ROBERT W. HARRELL, JR.
SPEAKER OF THE HOUSE
District 114
Charleston-Dorchester Counties
Home Address
1625 Bull Creek Lane
Charleston, SC 29414
(843) 572-1500
August 9, 2011
Mr. T. Christian Herren, Jr.
Chief, Voting Section
Civil Rights Division
Room 7254 - NWB
Department of Justice
1800 G St., N.W.
Washington, DC 20006
RE: Preclearance Submission of the 2011 South
Carolina House of Representatives Redistricting
Plan
Dear Mr. Herren:
In accordance with the provisions of 42 U.S.C.
§ 1973c and 28 C.F.R. Part 51, the South Carolina
House of Representatives ("SC House")herein submits
to the United States Department of Justice ("DOJ’)
for administrative preclearance a certified copy of
H. 3991, a bill passed by the House of Representatives
59a
and Senate of the South Carolina General Assembly,
bearing Ratification No. 108 and enacted as Act No. 72
of 2011 ("H. 3991"). This bill, which became effective
on June 28, 2011, provides for the redistricting of all
of the State’s 124 House districts.
Simultaneously with the submission of this administrative preclearance, the SC House filed suit in the
United States District Court for the District of
Columbia seeking judicial preclearance of H. 3991.
The SC House requests DOJ to preclear H. 3991,
thereby mooting the lawsuit.
Pursuant to 28 C.F.R. § 51.27, the SC House submits
the following information:
(a) A copy of any ordinance, enactment, order, or
regulation embodying a change affecting voting.
See Exhibit No. 1, contained in DVD No. 1 - A
certified copy of H. 3991, as signed by the
Governor on June 28, 2011.
See Exhibit No. 2, contained in DVD No. 1 - A
spreadsheet containing the demographic information for H. 3991.
See Exhibit No. 3, contained in DVD No. 1 Database files for H. 3991
(b) A copy of any ordinance, enactment, order, or
regulation embodying the voting practice that is
proposed to be repealed, amended, or otherwise
changed.
Members currently serving in the SC House
were elected pursuant to the Redistricting Plan
enacted by Act No. 55 of 2003 (R. 97, S. 591)
("Act No. 55"), which became effective on June
2, 2003. In accordance with 42 U.S.C. § 1973c
and 28 C.F.R. Part 51, the SC House submitted
this plan to the United States Department of
60a
Justice for preclearance on June 25, 2003,
which did not interpose any objection to the
changes specified in Act No. 55.
See Exhibit No. 4, contained in DVD No. 1 - A
certified copy of Act No. 55 of 2003 (S. 591, R.
97).
See Exhibit No. 5, contained in DVD No. 1 - A
spreadsheet containing the demographic
information for Act No. 55 of 2003 based upon
the 2000 Census data.
See Exhibit No. 6, contained in DVD No. 1 - A
spreadsheet containing the demographic
information for Act No. 55 of 2003 based upon
the 2010 Census data.
See Exhibit No. 7, contained in DVD No. 1 Database files for the House plan in Act No. 55
of 2003.
(c) A statement that identifies with specificity each
change affecting voting for which Section 5
preclearance is being requested and that
explains the difference between the submitted
change and the prior law or practice.
See responses to Paragraphs (a) and (b).
(d) The name, title, address, and telephone number
of the person making the submission.
The Honorable Robert W. Harrell, Jr.
Speaker of the South Carolina House of
Representatives
506 Blatt Building (29201)
Post Office Box 11867
Columbia, South Carolina 29211
ATTN: BRADLEY S. WRIGHT, ESQ. or
PATRICK G. DENNIS, ESQ.
Telephone: (803) 734-3125/Fax: (803) 734-9488
61a
(e) The name of the submitting authority and the
name of the jurisdiction responsible for the
change, if different.
The State of South Carolina is the jurisdiction
responsible for the change. Section 4 of H. 3991
designates the Speaker of the House of
Representatives, in his official capacity, as the
official submitting authority.
(f) If the submission is not from a State or county,
the name of the county and State in which the
submitting authority is located.
Not applicable.
(g) Identification of the person or body responsible
for making the change and the mode of decision
(e.g., act of State legislature, ordinance of city
council, administrative decision by registrar).
This change was enacted by the South Carolina
General Assembly in Act No. 72 and signed into
law by the Governor of South Carolina. (R. 108,
II. 3991). See Exhibits Nos. 1, 2 and 3.
(h) A statement identifying the statutory or other
authority under which the jurisdiction undertakes the change and a description of the
procedures the jurisdiction was required to
follow in deciding to undertake the change.
United States Constitution, Amendments X,
XIV, and XV.
South Carolina Constitution, Article III.
The Voting Rights Act of 1965, as amended.
(i)
The date of adoption of the change affecting
voting.
H. 3991, bearing Ratification No. 108, was
passed by the General Assembly on June 22,
(j)
62a
2011 and was signed by the Governor of South
Carolina on June 28, 2011.
The date on which the change is to take effect.
This Act took effect upon the Governor’s
signature on June 28, 2011, and is now subject
to the requirement for preclearance pursuant to
42 U.S.C. 9 1973c.
Following preclearance by DOJ, the plan will
become effective for the 2012 elections for the
$C House. Pursuant to S.C. Code Ann. 99 7-1115 and -210, candidates for the House of
Representatives must file notices of their
candidacy between March 16, 2012 and March
30, 2012. In accordance with S.C. Code Ann.
99 7-13-10 and -15, the primary election for the
districts will be held on June 12, 2012 and the
general election for the districts will be held on
November 6, 2012.
(k) A statement that the change has not yet been
enforced or administered, or an explanation of
why such a statement cannot be made.
This change has not yet been enforced or
administered as it has not yet received
preclearance in accordance with 42 U.S.C. 9
1973c.
(1)
Where the change will affect less than the
entire jurisdiction, an explanation of the scope
of the change.
The submitted change affects all 124 districts
for the SC House.
(m) A statement of the reasons for the change.
See Exhibit No. 8, contained on DVD No. 1 Explanation of Redistricting Process.
63a
(n) A statement of the anticipated effect of the
change on members of racial or language
minority groups.
H. 3991 "neither has the purpose nor will have
the effect of denying or abridging the right to
vote based on account of race or color." The
enacted redistricting plan does not have any
discriminatory purpose and will not "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). See also 28 C.F.R.
§ 51.54(a). To the contrary, H. 3991 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. Id. See also Guidance
Concerning Redistricting under Section 5 of the
Voting Rights Act, 76 Fed. Reg. 7470 (Feb. 9.
2011).
See also Exhibit No. 8, contained on DVD No. 1
- Explanation of Redistricting Process.
(o) A statement identifying any past or pending
litigation concerning the change or related
voting practices.
There is no pending litigation concerning these
changes to the 124 South Carolina House
Districts.
In 2001, the South Carolina General Assembly
adopted new redistricting plans for the SC
House, the South Carolina Senate, and its
Congressional delegation. H. 3003 of 2001 was
sent to then Governor James H. Hodges on
August 27, 2001. Governor Hodges returned to
64a
the General Assembly a veto message for
H. 3003 and, on September 4, 2001, the General
Assembly failed to override the Governor’s veto.
Consequently, H. 3003 of 2001 was never
enacted into law.
Subsequently, various plaintiffs filed a
malapportionment lawsuit in South Carolina
federal district court in an action captioned
Colleton County Council, v. McConnell. On
March 20, 2002, the three judge panel issued an
order implementing court drawn redistricting
plans for the SC House, the South Carolina
Senate, and the six Congressional districts. In
the order, the Court stated that its plan "shall
be the lawful election districts for each of those
bodies for the election scheduled in 2002 and for
all subsequent elections until the South
Carolina General Assembly, with the approval
of the Governor and in accordance with Section
5 of the Voting Rights Act, ends its impasse and
enacts a redistricting plan for any or for all of
them."
In 2002, members of the South Carolina House,
South Carolina Senate, and the South Carolina
Congressional delegation were elected pursuant
to the court-ordered plan. In 2003, the South
Carolina General Assembly enacted Act No. 55
(R. 97, S. 591), which became effective on June
2, 2003. Act No. 55 modified the court-ordered
plan for the districts of the South Carolina
House, South Carolina Senate and the six
Congressional districts. In accordance with 42
U.S.C. § 1973c and 28 C.F.R. Part 51, the SC
House submitted this plan to the United States
Department of Justice for preclearance on June
65a
25, 2003, which did not interpose any objection
to the changes specified in Act No. 55.
See Exhibit No. 9, contained on DVD No. 1 Colleton County Council v. McConnell, 201
F.Supp.2d 618 (D.S.C. 2002).
See Exhibit No. 10, contained on DVD No. 1 - A
spreadsheet containing the demographic
information based on the 2000 Census for the
plan ordered by the Court in Colleton County
Council, v. McConnell.
See Exhibit No. 11, contained on DVD No. 1 Database files for the plan ordered by the Court
in Colleton County Council, v. McConnell.
(p) A statement that the prior practice has been
precleared (with the date) or is not subject to the
preclearance requirement and a statement that
the procedure for the adoption of the change has
been precleared (with the date) or is not subject
to the preclearance requirement, or an
explanation of why such statements cannot be
made.
Members currently serving in the SC House
were elected pursuant to the Redistricting Plan
enacted by Act No. 55 of 2003 (R. 97, S. 591),
which became effective on June 2, 2003. In
accordance with 42 U.S.C. § 1973c and 28
C.F.R. Part 51, the SC House submitted this
plan to the United States Department of Justice
for preclearance on June 25, 2003, which did not
interpose any objection to the changes specified
in Act No. 55.
66a
(q) For redistrictings and annexations: the items
listed under 51.28(a)(1) and (b)(1); for
annexations only: the items listed under
51.28(c)(3).
28 C.F.R. § 51.28(a)(1) - Demographic Information. Total and voting age population of the
affected area before and after the change, by
race and language group. If such information is
contained in publications of the U.S. Bureau of
the Census, reference to the appropriate volume
and table is sufficient.
See Exhibit No. 2, contained in DVD No. 1 - A
spreadsheet containing the demographic
information for H. 3991.
See Exhibit No. 5, contained in DVD No. 1 - A
spreadsheet containing the demographic
information for Act No. 55 of 2003 based upon
the 2000 Census data.
See Exhibit No. 6, contained in DVD No. 1 - A
spreadsheet containing the demographic
information for Act No. 55 of 2003 based upon
the 2010 Census data.
28 C.F.R. § 51.28(b)(1) - Maps. Where any
change is made that revises the constituency
that elects any office or affects the boundaries
of any geographic unit or units defined or
employed for voting purposes (e.g., redistricting, annexation, change from district to at-large
elections) or that changes voting precinct
boundaries, polling place locations, or voter
registration sites, maps in duplicate of the area
to be affected, containing the following
information:
67a
(1) The prior and new boundaries of the voting
unit or units.
See Exhibit No. 12, contained in DVD No. 2
- Maps of each district as set forth in H.
3991.
See Exhibit No. 13, contained in DVD No. 3
- Maps detailing Non Hispanic Black
population of each district as set forth in
H. 3991.
(r) Other information that the Attorney General
determines is required for an evaluation of the
purpose or effect of the change. Such
information may include items listed in 51.28
and is most likely to be needed with respect to
redistrictings, annexations, and other complex
changes. In the interest of time such information should be furnished with the initial
submission relating to voting changes of this
type.
Because this item indicates that the items listed
in 28 C.F.R. § 51.28 may be needed for consideration regarding the instant redistricting
plan submission, please see the information
listed below.
Pursuant to 28 C.F.R. § 51.28, the following
supplemental information is provided in connection
with this submission:
(a) Demographic information.
(1) Total and voting age population of the
affected area before and aider the change,
by race and language group. If such
information is contained in publications of
the U.S. Bureau of the Census, reference to
68a
the appropriate volume and table is
sufficient.
See response to information requested in 28
C.F.R. § 51-27 (q) above.
(2) The number of registered voters for the
affected area by voting precinct before and
after the change, by race and language
group.
See Exhibit No. 14, contained in DVD No. 1
- The annual tally of registered voters for
the Primary and General elections held
from 2002 through 2010.
(3) Any estimates of population, by race and
language group, made in connection with
the adoption of the change.
H. 3991 was enacted based upon the 2010
Census data as reflected in the 2011
Bureau of the Census Public Law 94-171
file released to South Carolina on March
23, 2011. No estimates of population were
used by the House in enacting H. 3991.
(5)(v~i) In addition to the information
identified in 51.20 (c) through (e), the
documentation file accompanying the
block level equivalency file shall
contain the following information:
(C) For each plan field, an identification of the plan (e.g., state senate,
congressional, county board, city
council, school board) and its
status or nature (e.g., plan
currently in effect, adopted plan,
alternative plan and sponsors).
69a
See Exhibit No. 15, contained in
DVD No. 4 - Spreadsheet of
sponsors and Block Equivalency
Files for amendments to H. 3991.
(b) Maps. Where any change is made that revises
the constituency that elects any office or affects
the boundaries of any geographic unit or units
defined or employed for voting purposes (e.g.,
redistricting, annexation, change from district
to at-large elections) or that changes voting
precinct boundaries, polling place locations, or
voter registration sites, maps in duplicate of the
area to be affected, containing the following
information:
(1) The prior and new boundaries of the voting
unit or units.
(2) The prior and new boundaries of voting
precincts.
(3) The location of racial and language
minority groups.
(4) Any natural boundaries or geographical
features that influenced the selection of
boundaries of the prior or new units.
(5) The location of prior and new polling
places.
(6) The location of prior and new voter
registration sites.
See Exhibit No. 12, contained in DVD No. 2
- Maps of each district as set forth in
H. 3991.
See Exhibit No. 13, contained in DVD No. 3
- Maps detailing Non-Hispanic Black
population of each district as set forth in
H. 3991.
70a
(c)
Annexations.
Not applicable.
(d) Election returns. Where a change may affect
the electoral influence of a racial or language
minority group, returns of primary and general
elections conducted by or in the jurisdiction,
containing the following information:
(1) The name of each candidate.
See Exhibit No. 16, contained on DVD
No. 1 - Candidate Data for the Primary and
General Elections held from 2002 through
2010.
See Exhibit No. 17, contained on DVD
No. 1 - Election Returns for the Primary
and General Elections held from 2002
through 2010.
(2) The race or language group of each
candidate, if known.
See Exhibit No. 16, contained on DVD No.
1 - Candidate Data for the Primary and
General Elections held from 2002 through
2010.
(3) The position sought by each candidate.
See Exhibit No. 16, contained on DVD
No. 1 - Candidate Data for the Primary and
General Elections held from 2002 through
2010.
See Exhibit No. 17, contained on DVD
No. 1 - Election Returns for the Primary
and General Elections held from 2002
through 2010.
71a
(4) The number of votes received by each
candidate, by voting precinct.
See Exhibit No. 17, contained on DVD
No. 1 - Election Returns for the Primary
and General Elections held from 2002
through 2010.
(5) The outcome of each contest.
See Exhibit No. 17, contained on DVD
No. 1 - Election Returns for the Primary
and General Elections held from 2002
through 2010.
(6) The number of registered voters, by race
and language group, for each voting
precinct for which election returns are
furnished. Information with respect to
elections held during the last ten years will
normally be sufficient.
See Exhibit No. 14, contained in DVD No. 1
- The annual tally of registered voters for
the Primary and General elections held
from 2002 through 2010.
See also Exhibit No. 18, contained in DVD
No. 1 - Voter turnout for the Primary and
General elections held from 2002 through
2010.
(e) Language usage. Where a change is made
affecting the use of the language of a language
minority group in the electoral process,
information that will enable the Attorney
General to determine whether the change
is consistent with the minority language
requirements of the Act. The Attorney General’s interpretation of the minority language
72a
requirements of the Act is contained in
Interpretative Guidelines: Implementation of
the Provisions of the Voting Rights Act
Regarding Language Minority Groups, 28
C.F.R. part 55.
Not applicable. The SC House does not believe
that Act No. 72 of 2011 affects the use of the
language of a language minority group in the
electoral process.
Publicity and participation. For submissions
involving controversial or potentially controversial changes, evidence of public notice, of the
opportunity for the public to be heard, and of the
opportunity for interested parties to participate
in the decision to adopt the proposed change
and an account of the extent to which such
participation, especially by minority group
members, in fact took place. Examples of
materials demonstrating public notice or
participation include:
(1) Copies of newspaper articles discussing the
proposed change.
See Exhibit No. 19, contained on DVD
No. 1 - Newspaper articles discussing the
South Carolina redistricting process and H.
3991.
(2) Copies of public notices that describe the
proposed change and invite public comment
or participation in hearings and statements
regarding where such public notices
appeared (e.g., newspaper, radio, or
television, posted in public buildings, sent
to identified individuals or groups).
73a
See Exhibit No. 20, contained on DVD
No. 1 - Public hearing notices and press
releases concerning H. 3991 and the South
Carolina redistricting process.
See also Exhibit No. 21, contained on DVD
No. 1 - A media and special interest group
contact list used for distribution purposes
of pertinent news related to the SC House
plan.
See also the South Carolina House
Redistricting Website found at http ://redis
tricting.schouse.gov.
(3)
Minutes or accounts of public hearings
concerning the proposed change.
See Exhibit No. 22, contained on DVD
No. 1 - Transcripts of public hearings
concerning the redistricting process.
See Exhibit No. 23, contained on DVD
No. 1 - Documents received from the public
at the public hearings concerning the
redistricting process.
See Exhibit No. 24, contained on DVD
No. 1 -Audio Recordings of the Election
Laws Subcommittee discussion of H. 3991.
See Exhibit No. 25, contained on DVD
No. 1 - Audio Recordings of the House
Judiciary Committee discussion of H. 3991.
See Exhibit No. 26, contained on DVD
Nos. 5 - 22 - Video Recordings of the Full
House of Representatives discussion of H.
3991.
74a
(4) Statements, speeches, and other public
communications concerning the proposed
change.
See response to information requested in 28
C.F.R. § 51.28 (i)(3) above.
(5) Copies of comments from the general
public.
See Exhibit No. 23, contained on DVD
No. 1 - Documents received from the public
at the public hearings concerning the
redistricting process.
See Exhibit No. 27, contained on DVD
No. 1 - Correspondence received regarding
redistricting.
(6) Excerpts from legislative journals containing discussion of a submitted enactment, or
other materials revealing its legislative
purpose.
See Exhibit No. 28, contained on DVD
No. 1 - Journals of the House and Senate
concerning H. 3991.
(g) Availability of the submission.
(1) Copies of public notices that announce the
submission to the Attorney General, inform
the public that a complete duplicate copy of
the submission is available for public
inspection (e.g., at the county courthouse)
and invite comments for the consideration
of the Attorney General and statements
regarding where such public notices
appeared.
75a
See Exhibit No. 29, contained on DVD
No. 1 - Press Release sent to the Media and
Special Interest Group Contact List
identified in Exhibit No. 21.
See also the South Carolina House
Redistricting Website found at http://redis
tricting.schouse.gov.
(2) Information demonstrating that the
submitting authority, where a submission
contains magnetic media, made the
magnetic media available to be copied or, if
so requested, made a hard copy of the data
contained on the magnetic media available
to be copied.
See Exhibit No. 29, contained on DVD
No. 1 - Press Release sent to the Media and
Special Interest Group Contact List
identified in Exhibit No. 21.
See also the South Carolina House
Redistricting Website found at http://redis
tricting.schouse.gov.
(h) Minority group contacts. For submissions from
jurisdictions having a significant minority
population, the names, addresses, telephone
numbers, and organizational affiliation (if any)
of racial or language minority group members
residing in the jurisdiction who can be expected
to be familiar with the proposed change or who
have been active in the political process.
See Exhibit No. 30, contained on DVD No. 1 Contact information for racial minority group
members and organizations.
76a
The SC House believes this to be a valid and
complete submission and respectfully requests the
Department to receive and review it on that basis.
Additionally, the SC House respectfully requests that
the Department consider this request as expeditiously
as possible. Thank you for your attention to this
matter and please do not hesitate to contact me to
discuss these issues further.
Respectfully submitted,
/s/Robert W. Harrell
Robert W. Harrell, Jr.
Speaker of the South Carolina
House of Representatives.
Enclosures
cc: without enclosures:
The Honorable Nikki R. Haley
Governor, State of South Carolina
The Honorable Glenn F. McConnell
President Pro Tempore, South Carolina
State Senate
Bradley Heard, Esquire
United States Department of Justice
Michelle McLeod, Esquire
United States Department of Justice
77a
APPENDIX I
[1] UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
CV No. 3:11-3120
VANDROTH BACKUS,
et al.,
Plaintiffs
-againstTHE STATE OF SOUTH CAROLINA, et al.,
Defendants
Columbia, SC
March 2, 2012
BENCH TRIAL
Before: HON. MARGARET B. SEYMOUR
Chief United States District Court Judge
HON. HENRY F. FLOYD
Fourth Circuit Court Of Appeals Judge
HON. PATRICK MICHAEL DUFFY
Senior United States District Court Judge
TRIAL TESTIMONY OF THOMAS L. BRUNELL
78a
APPEARANCES:
For Plaintiffs: RICHARD A. HARPOOTLIAN, P.A.
By: RICHARD A. HARPOOTLIAN, ESQ.
M. DAVID SCOTT, ESQ.
CHRISTOPHER KENNEY, ESQ.
1410 Laurel Street
P.O. Box 1090
Columbia, SC 29202
For Defendant SOWELL GRAY STEPP & LAFFITI~E, L.L.C.
By: ROBERT E. STEPP, ESQ.
Harrell:
ROBERT E. TYSON, JR., ESQ.
1310 Gadsden Street
P.O. Box 11449
Columbia, SC 29211
Brunell - Direct
*
**
[91] A. No.
Q. With that preface, can you tell court what you
have concluded, please, with respect to whether race
was a predominant factor in drawing the districts in
South Carolina.
A. Right. So, I mean, there’s not enough evidence
to conclude that anything was the predominant factor
in drawing the district. So although race may have
been a factor in changing some precincts, its consideration was appropriate, of course, and necessary to
comply with one person one vote standards and avoid
retrogression.
Q. And that is your opinion-A. Absolutely.
79a
Q. --is that correct? And you hold that opinion to a
reasonable degree of certainty.
A. Yes.
Q. Let’s look at 62, please. Did you also reach an
opinion about the existence of racial bloc voting?
A. Yes. Every House district that I looked at, as
well as the Congressional district, it’s quite clear that
voting is still racially polarized in South Carolina.
Q. You hold that opinion to a reasonable degree of
certainty?
A. Yes.
MR. STEPP: If I may have a moment, your
Honor? (There was a pause in the proceedings)
MR. STEPP: No further questions. Please
answer any
*
**
[104] Brunell - Cross
Q. I’m not talking about might, I want to ask you
what you know.
A. Mr. Harpootlian, I can’t tell. I don’t know what
the impetus was with all the different moves. It’s a
complicated puzzle. And that’s the problem. We can’t
tell what the predominant reason for any line
movement was.
Q. But if Dr. McDonald in analyzing the swaps and
looking at the increase in population said that race
was a predominant factor, and they took--let me ask
you this: They took it from 31 where she was reelected
and elected, another African American was there, your
own numbers would indicate something less than 50
percent was needed.
80a
A. Maybe, maybe.
Q. Maybe?
A. I haven’t done the analysis.
Q. And did they ask--the House ask you to do the
analysis.
A. No.
Q. Even ai~erward they didn’t ask you to do the
analysis?
A. No.
Q. If you had done the analysis you could tell this
court whether or not she could be elected with less
than 50 percent African American, correct?
A. Yes.
Q. So what’s the racially neutral reason they took
her from 34 percent to over 50 percent, 51? Give me
the racially [105] neutral reason.
A. I don’t know.
Q. Okay. That’s good. I’ll accept that. Now, as to-there are nine districts in which the BVAP was under
50 percent they took over 50 percent. Are you aware
of that?
A. Yes.
Q. Okay. Can you infer any, and I’ll cut to the chase
here, a racially neutral reason why that was done?
Not speculate, but do you know of a racially neutral
reason?
A. No. I think they wanted to get them above
50 percent so they would avoid a Section 2 violation,
and so that’s the reason why they put them over 50
percent.
81a
Q. Is that a Section 2 violation or a Section 5
violation?
A. It was Section 5 to~in order to not retrogress
they had to have at least 21, but then Section 2 anyplace there’s, you know, any place the three Gingles
prongs are sufficient you have to draw a district.
Q. Did you read Dr. Engstrom’s report?
A. I’m sorry?
Q. Dr. Engstrom, did you look at his report that did
the same?
A. Yes.
Q. Now, and you know his report and the Senate
plan went to the~
MR. STEPP: Objection, your Honor. That
report’s not
[121] get reelected?
A. Perhaps, yes. If I were her I would.
Q. But in your statistical model she doesn’t need to,
does she?
A. That’s not true.
Q. What percentage white does she need to get now?
A. I have no idea.
Q. So you don’t know. I mean, what I’m trying to
get at is none of that racial bloc voting, racial polarization analysis was done prior to passing the plans, and
here you are today as we’re in court guessing whether
they needed to increase Mia Buffer’s white--black
population by one person. You don’t know, do you?
82a
A. That’s not part of my analysis at all. I didn’t do
any analysis before or after to figure out.
MR. HARPOOTLIAN: I’m going to ask the court-your Honor, may I ask you, I can cut to the chase here,
if he just answers yes or no then explain, we can move
on. But this--we’re doing what Dr. McDonald did.
JUDGE FLOYD: Answer the question yes or no and
if you need to you can explain.
THE WITNESS: You will have to ask me the
question again.
Q. (MR. HARPOOTLIAN) Was it--you don’t know
whether it was necessary to increase Mia Butler’s
district one African
[126] for redistricting improves how well citizens are
represented in Congress or in the state legislature,
which in turn improves their attitudes toward these
governments. Counting ballots is a difficult thing to
do and the closer the margin of the election the less
likely the, quote, correct, unquote, person is put into
office. Do you believe that?
A. That’s true.
Q. Okay. Just a second. I may be done.
(There was a pause in the proceedings)
Q. (MR. HARPOOTLIAN) I just have a couple more
questions. You indicated a moment ago under a
Section 5 analysis it would be okay to go from 48 to 50,
right?
A. Yes.
Q. How do you know you don’t have to go to 60?
83a
Ao
There may be instances where you should go
even higher.
Q. How would you know that?
A. You’d have to do an analysis.
Q. Well, did the legislature do an analysis?
A. No.
Q. So I mean-A. Not that I’m aware of.
Q. Okay. I think I can represent that we have not
seen an analysis in any of the materials produced,
okay? So when they--when they took a district from
48 to 50 maybe they should have gone to 60?
[127] A. Well, but you said it was already
performing, so~
Q. No, no~
A. You said they--it’s to reduce that district.
Q. Well, but you’re saying to comply with Section 5
you have to go to 50.
A. That is a majority minority district.
Q. Not 55?
A. In some instances if you are~if there’s evidence
presented then maybe you should go higher.
Q. Did they ever get this evidence?
A. I have no idea.
Q. Did you give it to them?
A. I did not.
Q. Did you see anything where they got that evidence?
84a
A. I did not.
Q. So for all you know, if there’s no evidence that
they got any of these numbers, that black voting bloc
analysis or the polarized voting analysis, isn’t it just a
guess, the numbers they went to?
A. Well, the 50 percent gives them a numerical
majority, right? That’s--take that as--it’s giving
them an equal opportunity to elect, right? So it doesn’t
guarantee them, right? And if voting is very polarized
and turnout is different it may not be enough, and in
those cases maybe the next time around they draw it
a higher BVAP.
*
**
85a
APPENDIX J
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Case No.: 3:11-cv-03120-HFF-MBS-PMD
VANDROTH BACKUS, WILLIE HARRISON BROWN,
CHARLESANN BUTTONE, BOOKER MANIGAULT,
EDWARD MCKNIGHT, MOSES MIMS, JR,
ROOSEVELT WALLACE, and WILLL~M G. WILDER,
on behalf of themselves and all other similarly
situated persons,
Plaintiffs,
SENATOR DICK ELLIOTT
Intervener-Plaintiff
V.
THE STATE OF SOUTH CAROLINA, NIKKI R. HALEY, in
her capacity as Governor, GLENN F. MCCONNELL, in
his capacity as President Pro Tempore of the Senate
and Chairman of the Senate Judiciary) Committee,
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,
Defendants.
86a
AFFIDAVIT OF THE HONORABLE
JAMES E. CLYBURN
I, James E. Clyburn, being duly sworn, state as
follows:
1. I represent South Carolina’s Sixth Congressional
District in the United States House of Representatives. I was first elected in 1992 and have served the
people of the Sixth District ever since. During my
service in the Congress, I have had the privilege of
serving as the Majority Whip, Chairman of the
Congressional Black Caucus, and Vice Chair and
Chairman of the House Democratic Caucus. I am
currently serving as the Assistant Democratic Leader
in the ll2th Congress.
2. I currently reside in Columbia, South Carolina. I
was born and raised in Sumter, South Carolina. Prior
to running for public office, I was involved in the Civil
Rights movement as a student leader and member
of the NAACP. As a young community organizer, I
helped organize marches and demonstrations in an
effort to repeal Jim Crow laws in the South. In 1971,
in the aftermath of the "Orangeburg Massacre" and
Charleston Hospital Strike, Governor John West
appointed me as the first black South Carolinian to
serve in the inner circle of South Carolina government since Reconstruction. In 1974, Governor West
appointed me to lead the South Carolina Human
Affairs Commission, a post I held until 1992 when I
first ran and was elected to the United States
Congress.
3. During my lifetime, I have witnessed dramatic
progress toward greater racial equality in South
Carolina and all across America. Much of this progress came at great cost during the Civil Rights efforts
87a
of the 1960’s and 1970s. Many brave Americans
suffered personal intimidation and physical violence
at the hands of their white neighbors for seeking
access to the rights secured them by our Constitution.
That progress has been made cannot be seriously
doubted, but neither should it be taken for granted. I
am proud to serve in the Congress during the
presidency of President Barack Obama. I am also
proud to be one of two black Congressmen from South
Carolina. While I often disagree with my friend,
Congressman Tim Scott (CD-1), our elections prove
that voters in our state, both white and black, are
increasingly willing to look to the content of one’s
character rather than skin color when choosing a
candidate, although I think it is rather safe to say that
neither one of us could get elected in the other’s
District.
4. Much of this political progress black candidates
and voters have made in our state was made possible
by the Voting Rights Act of 1965. Congress understood
in passing the Voting Rights Act that it was necessary
to give black voters an opportunity to elect candidates
who would represent their common interests. This
often required the creation of super-majority black
districts with 65 percent or more of the population
being black. At that time, this was the only way to
ensure that black voters would have a chance to
compete. A black candidate could not expect to win
many white votes. The black community was underregistered to vote and often would not turnout to vote
in the same numbers as whites due to decades of Jim
Crow laws and voter suppression.
5. South Carolina has made great progress in race
relations since the Voting Rights Act was first passed.
While old prejudices about race are often slow to
88a
change, many things have clearly changed for the
better. We have elected many black candidates to all
levels of South Carolina government. Many of these
black office holders are elected with the help of white
voters, including some in districts where black voters
are not a majority of the district’s population. State
Senators Floyd Nicholson and Gerald Malloy, for
example, were both elected in districts that were not
majority black districts. Many black members of the
state House of Representatives are also elected with
less than fifty percent of their district comprised of
black voters.
6. In light of the progress we have made in race
relations, I am very concerned that South Carolina’s
adopted redistricting laws, particularly Act 75 of 2011
drawing election districts for the United States
Congress, is a substantial step backward for black
voters in our state. I believe Act 75 is a discriminatory
effort to unlawfully "pack" black voters into the Sixth
Congressional District.
7. When the Federal Court drew South Carolina’s
Congressional Districts in 2002, the Sixth District had
a Black Voting Age Population (BVAP) of 53.55
percent. Between 2002 and 2010, the BVAP of the
District fell, as a result of natural population shifts, to
52 percent.
8. I believe black voters in the Sixth District will
continue to choose me as their preferred representative in Congress. I also believe I have earned the trust
of many of my white constituents who have also voted
for me as their preferred member of Congress. Despite
the reduction in the BVAP of the Sixth Congressional
District between 2002 and 2010, I was reelected five
times, with between 62.9 percent and 67.5 percent of
the vote. On average, I received 65.8 percent of the
89a
vote during this period. In spite of these facts, Act 75
increases my BVAP to 55.18 percent.
9. I did not ask the General Assembly to increase
the BVAP of the Sixth Congressional District. I also
believe doing so is unnecessary to comply with the
Voting Rights Act where the previous five elections
demonstrate that a BVAP of 52 percent seems
sufficient for black voters to elect their candidate of
choice.
10. I believe the Congressional Redistricting plan
is an intentional effort to decrease black voters’
political influence in South Carolina outside of the
Sixth Congressional District. I believe the General
Assembly packed as many black voters as possible into
the Sixth District in order to prevent them from
influencing elections in districts adjacent to the one in
which I serve.
11. As a member of Congress, I cannot represent the
interests of every South Carolinian who happens to be
black. I can only represent the interests of the communities in my district, whether they are black or
white. The new Sixth District is the largest of all the
new districts in terms of geography. It includes very
diverse communities, many of which have little in
common with one another. For example, the Sixth
District has expanded further north into Columbia’s
mixed-race northeastern suburbs but it also adds more
of the city of Charleston by running down to the
Charleston Peninsula then turning north to add
densely populated black neighborhoods on the
northern portion of the Peninsula. The new district
also adds Allendale, Hampton, and Jasper Counties,
some of our state’s poorest rural black areas. All of
these communities have distinct needs and desires
regardless of the race of the people who reside in them.
90a
12. I also object to the manner in which the
Congressional Plan trades white former constituents
for new black constituents. In many of the areas
where the new Congressional Plan engages in these
trades it is completely unnecessary in order to
accommodate the new Seventh Congressional district
in the Pee Dee or to accommodate another redistricting goal like improving the shape or compactness of
the district or keeping communities of interest intact.
13. For example, the adopted plan trades an area I
previously represented in Orangeburg County for a
different piece of geography in the southern part of
Orangeburg County. The new area has a higher
concentration of black voters. This is objectionable
because I had cultivated relationships with many of
the voters who were taken out of my district. This
trade also does not serve any legitimate purpose
since the new plan still divides Orangeburg County
between the Sixth and Second Congressional Districts.
Similarly, the Congressional Redistricting plan also
trades white areas for black areas in Charleston and
Berkeley Counties. This has the effect of making an
already unusual looking protrusion into the Sixth
District even more unusual as the adopted Sixth
District now hooks around the eastern side of Berkeley
County then hooks northward up the Charleston
Peninsula.
14. Other areas in the new Sixth District also
appear to have been driven by packing black voters in
and keeping white voters out. For example, the new
Sixth District gives up a substantial portion of Sumter
County. However, it retains the easternmost portion
of Sumter County that includes a predominantly black
area on the eastern side of the City of Sumter. In
order for me to reach my new constituents in Sumter
91a
County, I will have to drive through the Fifth
Congressional District.
15. My objections to Act 75 have nothing to do with
the particular voters or areas of the state that I am
happy to represent if I am fortunate enough to win
another term in Congress. I have represented the
Midlands, the Pee Dee and the Low Country as a
member of Congress and I have great affection for the
people and places in each of these regions. However,
the adopted Sixth District cannot represent the
interests of any of these areas adequately if it only
includes neighborhoods where black voters live.
16. I believe the adopted Congressional Plan harms
my constituents, both black and white, by further
separating them on the basis of race. Act 75 blatantly
trades a great number of my white constituents for
black constituents in what I believe is an intentional
effort to re-segregate our citizens politically. I believe
this is a step backwards for South Carolina. The
purpose of the Voting Rights Act is to level the playing
field for minority candidates and voters, not to
re-segregate our society along strictly racial lines.
Black voters want results on issues that matter in
their daily lives. Because black voters are a minority
in our state, they must, at some point, work together
with white voters to elect representatives that both
white and black voters agree will represent their
interests. Packing black voting power into the Sixth
Congressional District ensures this will never happen.
17. Any suggestion that the Voting Rights Act
requires this type of segregation is an affront to the
very purpose of the Voting Rights Act, and I encourage
this Court to reject it. I believe South Carolina is
demonstrating an ability to look beyond skin color in
92a
our politics. Until some of our political leaders catch
up with the people, this Court must step in and fix this
unconscionable racial gerrymander.
/s/James E. Clyburn
Affiant
Sworn to and subscribed before me
This 14th day of February 2012.
/s/[Ille~ble]
Notary Public of South Carolina
My Commission Expires: April 22, 2015
93a
APPENDIX K
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Case No.: 3:11-cv-03120-HFF-MBS-PMD
VANDROTH BACKUS, WILLIE HARRISON BROWN,
CHARLESANN BUTTONE, BOOKER MANIGAULT,
EDWARD MCKNIGHT, MOSES MIMS, JR,
ROOSEVELT WAI_J.~CE, and WILLIAM G. WILDER,
on behalf of themselves and all other similarly
situated persons,
Plaintiffs,
SENATOR DICK ELLIOTT
Intervener-Plaintiff
V.
THE STATE OF SOUTH CAROLINA, NIKK~ R. HALEY, in
her capacity as Governor, GLENN F. MCCONNELL, in
his capacity as President Pro Tempore of the Senate
and Chairman of the Senate Judiciary) Committee,
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,
Defendants.
94a
AFFIDAVIT OF THE HONORABLE
JAMES E. CLYBURN
I, James E. Clyburn, being duly sworn, state as
follows:
1. I represent South Carolina’s Sixth Congressional
District in the United States House of Representatives. I was first elected in 1992 and have served the
people of the Sixth District ever since. During my
service in the Congress, I have had the privilege of
serving as the Majority Whip, Chairman of the
Congressional Black Caucus, and Vice Chair and
Chairman of the House Democratic Caucus. I am
currently serving as the Assistant Democratic Leader
in the ll2th Congress.
2. I currently reside in Columbia, South Carolina. I
was born and raised in Sumter, South Carolina. Prior
to running for public office, I was involved in the Civil
Rights movement as a student leader and member
of the NAACP. As a young community organizer, I
helped organize marches and demonstrations in an
effort to repeal Jim Crow laws in the South. In 1971,
in the ai~ermath of the "Orangeburg Massacre" and
Charleston Hospital Strike, Governor John West
appointed me as the first black South Carolinian to
serve in the inner circle of South Carolina government since Reconstruction. In 1974, Governor West
appointed me to lead the South Carolina Human
Affairs Commission, a post I held until 1992 when I
first ran and was elected to the United States
Congress.
3. During my lifetime, I have witnessed dramatic
progress toward greater racial equality in South
Carolina and all across America. Much of this progress came at great cost during the Civil Rights efforts
95a
of the 1960’s and 1970s. Many brave Americans
suffered personal intimidation and physical violence
at the hands of their white neighbors for seeking
access to the rights secured them by our Constitution.
That progress has been made cannot be seriously
doubted, but neither should it be taken for granted. I
am proud to serve in the Congress d~ring the
presidency of President Barack Obama. I am also
proud to be one of two black Congressmen from South
Carolina. While I often
with
friend
Tim Scott (CD-1
4. Much of this political progress black candidates
and voters have made in our state was made possible
by the Voting Rights Act of 1965. Congress understood
in passing the Voting Rights Act that it was necessary
to give black voters an opportunity to elect candidates
who would represent their common interests. This
often required the creation of super-majority black
districts with 65 percent or more of the population
being black. At that time, this was the only way to
ensure that black voters would have a chance to
compete. A black candidate could not expect to win
many white votes. The black community was underregistered to vote and often would not turnout to vote
in the same numbers as whites due to decades of Jim
Crow laws and voter suppression.
5. South Carolina has made great progress in race
relations since the Voting Rights Act was first passed.
While old prejudices about race are often slow to
96a
change, many things have clearly changed for the
better. We have elected many black candidates to all
levels of South Carolina government. Many of these
black office holders are elected with the help of white
voters, including some in districts where black voters
are not a majority of the district’s population. State
Senators Floyd Nicholson and Gerald Malloy, for
example, were both elected in districts that were not
majority black districts. Many black members of the
state House of Representatives are also elected with
less than fifty percent of their district comprised of
black voters.
7. When the Federal Court drew South Carolina’s
Congressional Districts in 2002, the Sixth District had
a Black Voting Age Population (BVAP) of 53.55
percent. Between 2002 and 2010, the BVAP of the
District fell, as a result of natural population shifts, to
52 percent.
8. I believe black voters in the Sixth District will
continue to choose me as their preferred representative in Congress. I also believe I have earned the trust
of many of my white constituents who have also voted
for me as their preferred member of Congress. Despite
the reduction in the BVAP of the Sixth Congressional
District between 2002 and 2010, I was reelected five
times, with between 62.9 percent and 67.5 percent of
the vote. On average, I received 65.8 percent of the
97a
vote during this period. In spite of these facts, Act 75
increases my BVAP to 55.18 percent.
9. I did not ask the General Assembly to increase
the BVAP of the Sixth
District.
11. As a member of Congress, I cannot represent the
interests of every South Carolinian who happens to be
black. I can only represent the interests of the communities in my district, whether they are black or
white. The new Sixth District is the largest of all the
new districts in terms of geography. It includes very
diverse communities, many of which have little in
common with one another. For example, the Sixth
District has expanded further north into Columbia’s
mixed-race northeastern suburbs but it also adds more
of the city of Charleston by running down to the
Charleston Peninsula then turning north to add
densely populated black neighborhoods on the
northern portion of the Peninsula. The new district
also adds Allendale, Hampton, and Jasper Counties,
some of our state’s poorest rural black areas. All of
these communities have distinct needs and desires
regardless of the race of the people who reside in them.
98a
12
or to accommodate another redistricting goal like improving the shape or compactness of
the district or keeping communities of interest intact.
13. For example, the adopted plan trades an area I
previously represented in Orangeburg County for a
different piece of geography in the southern part of
Orangeburg County. The new area has a hi
concentration of black
Similarly, the Congressional Redistricting plan also
trades white areas for black areas in Charleston and
Berkeley Counties. This has the effect of making an
already unusual looking protrusion into the Sixth
District even more unusual as the adopted Sixth
District now hooks around the eastern side of Berkeley
County then hooks northward up the Charleston
Peninsula.
14. Other areas in the new Sixth District also
appear to have been driven by packing black voters in
and keeping white voters out. For example, the new
Sixth District gives up a substantial portion of Sumter
County. However, it retains the easternmost portion
of Sumter County that includes a predominantly black
area on the eastern side of the City of Sumter. In
order for me to reach my new constituents in Sumter
99a
County, I will have to drive through the Fii~h
Congressional District.
15. My objections to Act 75 have nothing to do with
the particular voters or areas of the state that I am
happy to represent if I am fortunate enough to win
another term in Congress. I have represented the
Midlands, the Pee Dee and the Low Country as a
member of Congress and I have great affection for the
and
in each of these re
The
purpose of the Voting Rights Act is to level the playing
field for minority candidates and voters, not to
re-segregate our society along strictly racial lines.
Black voters want results on issues that matter in
their daily lives. Because black voters are a minority
in our state, they must, at some point, work together
with white voters to elect representatives that both
17.
I believe South Carolina is
demonstrating an ability to look beyond skin color in
100a
our politics. Until some of our political leaders catch
up with the people, this Court must step in and fix this
unconscionable racial gerrymander.
/s/James E. Clvburn
Affiant
Sworn to and subscribed before me
This 14th day of February 2012.
/s/[Ille~ble]
Notary Public of South Carolina
My Commission Expires: April 22, 2015
BLANK PAGE
102a
APPENDIXM
United States Code Annotated
Title 42. The Public Health and Welfare
Chapter 20. Elective Franchise
Subchapter I-A. Enforcement of Voting Rights
(Refs & Annos)
42 U.S.C.A. § 1973c
Effective: July 27, 2006
Currentness
42 U.S.C.A. § 1973c. Alteration of voting qualifications; procedure and appeal; purpose or effect
of diminishing the ability of citizens to elect
their preferred candidates
(a) Whenever a State or political subdivision with
respect to which the prohibitions set forth in section
1973b(a) of this title based upon determinations made
under the first sentence of section 1973b(b) of this
title are in effect shall enact or seek to administer any
voting qualification or prerequisite to voting, or
standard, practice, or procedure with respect to voting
different from that in force or effect on November 1,
1964, or whenever a State or political subdivision with
respect to which the prohibitions set forth in section
1973b(a) of this title based upon determinations made
under the second sentence of section 1973b(b) of this
title are in effect shall enact or seek to administer
any voting qualification or prerequisite to voting, or
standard, practice, or procedure with respect to voting
different from that in force or effect on November 1,
1968, or whenever a State or political subdivision with
respect to which the prohibitions set forth in section
1973b(a) of this title based upon determinations made
under the third sentence of section 1973b(b) of this
103a
title are in effect shall enact or seek to administer any
voting qualification or prerequisite to voting, or
standard, practice, or procedure with respect to voting
different from that in force or effect on November 1,
1972, such State or subdivision may institute an
action in the United States District Court for the
District of Columbia for a declaratory judgment that
such qualification, prerequisite, standard, practice, or
procedure neither has the purpose nor will have the
effect of denying or abridging the right to vote on
account of race or color, or in contravention of the
guarantees set forth in section 1973b(f)(2) of this title,
and unless and until the court enters such judgment
no person shall be denied the right to vote for failure
to comply with such qualification, prerequisite,
standard, practice, or procedure: Provided, That such
qualification, prerequisite, standard, practice, or
procedure may be enforced without such proceeding if
the qualification, prerequisite, standard, practice, or
procedure has been submitted by the chief legal officer
or other appropriate official of such State or
subdivision to the Attorney General and the Attorney
General has not interposed an objection within sixty
days after such submission, or upon good cause shown,
to facilitate an expedited approval within sixty days
after such submission, the Attorney General has
affirmatively indicated that such objection will not
be made. Neither an affirmative indication by the
Attorney General that no objection will be made, nor
the Attorney General’s failure to object, nor a
declaratory judgment entered under this section shall
bar a subsequent action to enjoin enforcement of
such qualification, prerequisite, standard, practice, or
procedure. In the event the Attorney General
affirmatively indicates that no objection will be made
within the sixty-day period following receipt of a
104a
submission, the Attorney General may reserve the
right to reexamine the submission if additional
information comes to his attention during the
remainder of the sixty-day period which would
otherwise require objection in accordance with this
section. Any action under this section shall be heard
and determined by a court of three judges in
accordance with the provisions of section 2284 of Title
28 and any appeal shall lie to the Supreme Court.
(b) Any voting qualification or prerequisite to
voting, or standard, practice, or procedure with
respect to voting that has the purpose of or will have
the effect of diminishing the ability of any citizens of
the United States on account of race or color, or in
contravention of the guarantees set forth in section
1973b(f)(2) of this title, to elect their preferred
candidates of choice denies or abridges the right to
vote within the meaning of subsection (a) of this
section.
(c) The term "purpose" in subsections (a) and (b) of
this section shall include any discriminatory purpose.
(d) The purpose of subsection (b) of this section is to
protect the ability of such citizens to elect their
preferred candidates of choice.
Current through P.L. 113-93 (excluding P.L. 113-79)
approved 4-1-14
105a
APPENDIX N
United States Code Annotated
Federal Rules of Civil Procedure for the
United States District Courts (Refs & Annos)
Title VII. Judgment
Federal Rules of Civil Procedure Rule 60
Rule 60. Relief From a Judgment or Order
Currentness
Rule 60. Relief From a Judgment or Order
(a) Corrections Based on Clerical Mistakes;
Oversights and Omissions. The court may correct a
clerical mistake or a mistake arising from oversight or
omission whenever one is found in a judgment, order,
or other part of the record. The court may do so on
motion or on its own, with or without notice. But aider
an appeal has been docketed in the appellate court and
while it is pending, such a mistake may be corrected
only with the appellate court’s leave.
(b) Grounds for Relief from a Final Judgment,
Order, or Proceeding. On motion and just terms, the
court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the
following reasons:
inadvertence, surprise, or
(1) mistake,
excusable neglect;
(2) newly discovered evidence that, with
reasonable diligence, could not have been discovered
in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an
opposing party;
(4) the judgment is void;
106a
(5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has
been reversed or vacated; or applying it prospectively
is no longer equitable; or
(6) any other reason that justifies relief.
(c) Timing and Effect of the Motion.
(1) Timing. A motion under Rule 60(b) must be
made within a reasonable time--and for reasons (1),
(2), and (3) no more than a year after the entry of the
judgment or order or the date of the proceeding.
(2) Effect on Finality. The motion does not
affect the judgment’s finality or suspend its operation.
(d) Other Powers to Grant Relief. This rule does not
limit a court’s power to:
(1) entertain an independent action to relieve a
party from a judgment, order, or proceeding;
(2) grant relief under 28 U.S.C. § 1655 to a
defendant who was not personally notified of the
action; or
(3) set aside a judgment for fraud on the court.
(e) Bills and Writs Abolished. The following are
abolished: bills of review, bills in the nature of bills of
review, and writs of coram nobis, coram vobis, and
audita querela.
BLANK pAGE