Ala. Legislative Black Caucus v. Alabama

231 F.Supp.3d 1026

ALABAMA LEGISLATIVE BLACK CAUCUS, et al., Plaintiffs,

v.The State of ALABAMA, et al., Defendants.

Alabama Democratic Conference, et al., Plaintiffs,

v.The State of Alabama, et al., Defendants.

CASE NO. 2:12–CV–691 (Three–Judge Court)

CASE NO. 2:12–CV–1081 (Three–Judge Court)

United States District Court, M.D. Alabama, Northern Division.

Filed January 20, 2017

James Uriah Blacksher, Attorney at Law, U. W. Clemon, White Arnold & Dowd P.C., Wilson Edward Still, Edward Still Law Firm LLC, Birmingham, AL, for Plaintiffs.

Algert Swanson Agricola, Jr., Ryals Donaldson & Agricola PC, Andrew L. Brasher, Misty Shawn Fairbanks Messick, Megan A. Kirkpatrick, Office of the Attorney General, David Bryson Byrne, Jr., James William Davis, State of Alabama, Governor's Office, Jordan Dorman Walker, Jr., Balch & Bingham LLP, Montgomery, AL, John Joseph Park, Jr., Strickland Brockington Lewis LLP, Atlanta, GA, for Defendants.

Before WILLIAM PRYOR, Circuit Judge, WATKINS, Chief District Judge, and THOMPSON, District Judge.

MEMORANDUM OPINION AND ORDER

WILLIAM PRYOR, Circuit Judge:

The Alabama Legislature faced a difficult task in 2012. The Fourteenth Amendment requires state legislative districts of roughly equal population and prohibits racial gerrymandering. But the Voting Rights Act required Alabama to avoid retrogressing the ability of black voters to elect candidates of their choice. In other words, the legislature had to draw districts of roughly equal population that were conscious enough of race to comply with the Voting Rights Act, but not so conscious of race that they violated the Fourteenth Amendment. In the process, the legislature had to resolve conflicts between traditional districting criteria and secure enough votes to pass both houses. And to further complicate matters, most of the existing majority-black districts were underpopulated by at least five percent.

After the legislature enacted a plan, the Alabama Legislative Black Caucus and the Alabama Democratic Conference sued Alabama for violating the Fourteenth Amendment and the Voting Rights Act. We granted judgment for Alabama after a four-day bench trial. The Supreme Court vacated that judgment and remanded to allow the plaintiffs to reargue their claims of racial gerrymandering and present new evidence.

The plaintiffs now challenge all thirty-five majority-black districts and House District 85 as racial gerrymanders. We accepted new evidence, ordered briefing, and held oral argument. At our request, the plaintiffs agreed to draw alternative plans that complied with federal and state law and to submit briefing on the plans. Alabama deposed the plaintiffs' experts and submitted its own briefing. We imposed no page limits on any of the briefing.

We have readopted our earlier decisions resolving all claims that the Supreme Court did not address, (Doc. 242), and we now decide the claims of racial gerrymandering. To succeed on a claim of racial gerrymandering, the plaintiffs must prove that "race [was] the 'dominant and controlling' or 'predominant' consideration in deciding 'to place a significant number of voters within or without a particular district.' " Ala. Legislative Black Caucus v. Alabama , ––– U.S. ––––, 135 S.Ct. 1257, 1264, 191 L.Ed.2d 314 (2015) (quoting Miller v. Johnson , 515 U.S. 900, 913, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) ). Race predominated over traditional districting criteria if it "was the criterion that, in the State's view, could not be compromised." Shaw v. Hunt , 517 U.S. 899, 907, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996). If the plaintiffs prove that race predominated, then the defendants must prove that they had a "strong basis in evidence," Ala. Legislative Black Caucus , 135 S.Ct. at 1274, that the use of race was "narrowly tailored to serve a compelling state interest," Shaw , 517 U.S. at 907–08, 116 S.Ct. 1894. A strong basis in evidence consists of "good reasons to believe such use is required, even if a court does not find that the actions were necessary for statutory compliance." Ala. Legislative Black Caucus , 135 S.Ct. at 1274.

The plaintiffs argue that race predominated when the drafters kept the black population percentage in a district the same as it was before redistricting, but more is necessary under Supreme Court caselaw. It is possible to hit a supposed target solely by considering traditional districting criteria, as the plaintiffs concede when their alternative plans match the previous black population percentage in a district. The plaintiffs instead must provide evidence of how the drafters subordinated traditional districting criteria to race. We consider all of the evidence offered by the parties on remand, and we have no mechanical formula or system of weights for considering this evidence.

We find that race did not predominate in 22 of the 36 districts, and with respect to those districts, our inquiry ends there. We also find that race predominated in 14 of the 36 districts, and we must next decide whether those districts survive strict scrutiny.

We conclude that Alabama has satisfied strict scrutiny in two of the districts where race predominated. Alabama asserts an interest in complying with the Voting Rights Act, and it relies primarily on statements by two incumbent members of the Black Caucus at public meetings of the redistricting committee. This evidence is sufficient in those members' districts. As we explain, the Supreme Court does not require that the legislature conduct studies. It instead requires only that the legislature had a strong basis in evidence for its use of race. The statement of Senator Hank Sanders in particular is detailed and based on his experience as an influential longtime incumbent. This kind of testimony constitutes a "strong basis in evidence." And despite the plaintiffs' insistence to the contrary, the record does not establish that the drafters had an incorrect understanding of section 5 in these two districts.

We GRANT judgment for the plaintiffs with respect to Senate District 20, Senate District 26, Senate District 28, House District 32, House District 53, House District 54, House District 70, House District 71, House District 77, House District 82, House District 85, and House District 99, and we ENJOIN the use of these districts in future elections. With respect to the other 24 districts, we GRANT judgment for the defendants.

TABLE OF CONTENTS

I. BACKGROUND ...1034

A. The Parties ...1034

B. Relevant Factual Background ...1035

C. Decision of the Supreme Court ...1041

D. Subsequent Proceedings ...1043

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW ...1044

A. Standing ...1045

B. Majority–Black Districts ...1045

C. The Plaintiffs' Court–Ordered Alternative Plans ...1046

D. Racial Predominance Generally ...1049

a. The ±1% Deviation Does Not Prove that Race Predominated. ...1049

b. Alabama Had a Statewide Policy of Racial Targets, but the Plaintiffs Still Must Prove that the Policy Caused Race to Predominate in Individual Districts ...1050

c. The Dissent Misstates the Test for Racial Predominance. ...1056

d. The Plaintiffs Must Prove that the Precinct Splits Cannot Be Explained by Traditional Districting Criteria. ...1058

E. Strict Scrutiny Generally ...1061

F. District–By–District Analysis of the Challenged Plan ...1064

a. Senate Districts 18, 19, and 20 (Birmingham) ...1065

b. Senate District 23 (West Black Belt) ...1082

c. Senate District 24 (West Black Belt) ...1111

d. Senate District 26 (Montgomery) ...1129

e. Senate District 28 (East Black Belt) ...1140

f. Senate District 33 (Mobile) ...1158

g. House Districts 19 and 53 (Madison County) ...1165

h. House District 32 ...1185

i. House Districts 52, 54, 55, 56, 57, 58, 59, and 60 (Jefferson County) ... 1192

j. House Districts 67, 68, 69, 70, 71, and 72 (West Black Belt) ...1221

k. House Districts 76, 77, and 78 (Montgomery) ...1279

l. House Districts 82, 83, 84, and 85 (East Black Belt) ...1297

m. House Districts 97, 98, 99, and 103 (Mobile County) ...1320

CONCLUSION ...1345

APPENDIX ...1349

I. BACKGROUND

We divide our discussion of the background in four parts. First, we identify the parties. Second, we explain the history of the redistricting process as it relates to the claims of racial gerrymandering. Third, we review the decision of the Supreme Court in Alabama Legislative Black Caucus v. Alabama , –––U.S. ––––, 135 S.Ct. 1257, 191 L.Ed.2d 314 (2015). Fourth, we discuss the proceedings that occurred after the decision of the Supreme Court.

A. The Parties

In this opinion, we divide the parties in three groups. The first group is the Black Caucus plaintiffs: the Alabama Legislative Black Caucus, the Alabama Association of Black County Officials, Fred Armstead, George Bowman, Rhondel Rhone, Senator Bobby Singleton, Albert F. Turner, and Jiles Williams Jr. The second group is the Democratic Conference plaintiffs: the Alabama Democratic Conference, Lynn Pettway, Stacey Stallworth, Rosa Toussaint, and Framon Weaver Sr. We refer to the third group as "Alabama" or "the defendants," and they are Alabama, Governor Robert J. Bentley, Representative Randy Davis, Senator Gerald Dial, Representative Jim McClendon, and Secretary of State John H. Merrill.

B. Relevant Factual Background

This litigation has a deeply partisan backstory. After the 2000 Census, the Democrat-controlled legislature adopted redistricting plans that were expressly partisan. Montiel v. Davis , 215 F.Supp.2d 1279, 1283 (S.D. Ala. 2002) ("Plaintiffs have proffered no evidence to refute the abundant evidence ... that [the redistricting plans] were the product of the Democratic Legislators' partisan political objective to design Senate and House plans that would preserve their respective Democratic majorities."). The redistricting criteria in 2001 required that the population in a given district be within ±5% of the ideal population of a district. Id. Within that range, the 2001 redistricting plans systematically underpopulated Democratic districts, including majority-black districts. Out of...