Holloway v. City of Virginia Beach

42 F.4th 266

Latasha HOLLOWAY; Georgia Allen, Plaintiffs – Appellees,

v.The CITY OF VIRGINIA BEACH ; the Virginia Beach City Council; Donna Patterson, in her official capacity as General Registrar for the City of Virginia Beach ; Robert Dyer, in his official capacity as the Mayor of Virginia Beach; Patrick Duhaney, in his official capacity as City Manager of Virginia Beach; Michael Berlucchi, in his official capacity as member of the Virginia Beach City Council; Barbara Henley, in her official capacity as member of the Virginia Beach City Council; Louis Jones, in his official capacity as member of the Virginia Beach City Council; John Moss, in his official capacity as member of the Virginia Beach City Council; Aaron Rouse, in his official capacity as member of the Virginia Beach City Council; Guy Tower, in his official capacity as member of the Virginia Beach City Council; Rosemary Wilson, in her official capacity as Vice Mayor of Virginia Beach; Sabrina Wooten, in her official capacity as member of the Virginia Beach City Council; Rocky Holcomb, in his official capacity as member of the Virginia Beach City Council; Linwood Branch, in his official capacity as member of the Virginia Beach City Council, Defendants – Appellants.

Commonwealth of Virginia, Amicus Supporting Appellants,

Brennan Center For Justice at NYU School of Law; Southern Coalition for Social Justice, Amici Supporting Appellees.

Latasha Holloway; Georgia Allen, Plaintiffs – Appellees,

v.The City of Virginia Beach ; the Virginia Beach City Council; Donna Patterson, in her official capacity as General Registrar for the City of Virginia Beach ; Robert Dyer, in his official capacity as the Mayor of Virginia Beach; Patrick Duhaney, in his official capacity as City Manager of Virginia Beach; Michael Berlucchi, in his official capacity as member of the Virginia Beach City Council; Barbara Henley, in her official capacity as member of the Virginia Beach City Council; Louis Jones, in his official capacity as member of the Virginia Beach City Council; John Moss, in his official capacity as member of the Virginia Beach City Council; Aaron Rouse, in his official capacity as member of the Virginia Beach City Council; Guy Tower, in his official capacity as member of the Virginia Beach City Council; Rosemary Wilson, in her official capacity as Vice Mayor of Virginia Beach; Sabrina Wooten, in her official capacity as member of the Virginia Beach City Council; Rocky Holcomb, in his official capacity as member of the Virginia Beach City Council; Linwood Branch, in his official capacity as member of the Virginia Beach City Council, Defendants – Appellants.

Commonwealth of Virginia, Amicus Supporting Appellants,

Brennan Center for Justice at NYU School of Law; Southern Coalition for Social Justice, Amici Supporting Appellees.

No. 21-1533

No. 21-2431

United States Court of Appeals, Fourth Circuit.

Argued: March 8, 2022

Decided: July 27, 2022

ARGUED: Richard Bryan Raile, BAKER & HOSTETLER LLP, Washington, D.C., for Appellants. Christopher DeSean Lamar, CAMPAIGN LEGAL CENTER, Washington, D.C., for Appellees. Erika L. Maley, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Amicus Commonwealth of Virginia. ON BRIEF: Mark D. Stiles, City Attorney, Christopher S. Boynton, Deputy City Attorney, Gerald L. Harris, Senior City Attorney, Joseph M. Kurt, Assistant City Attorney, OFFICE OF THE CITY ATTORNEY, Virginia Beach, Virginia; Erika Dackin Prouty, Columbus, Ohio, Katherine L. McKnight, Washington, D.C., Patrick T. Lewis, BAKER & HOSTETLER LLP, Cleveland, Ohio, for Appellants. J. Gerald Hebert, J. GERALD HEBERT P.C., Alexandria, Virginia; Annabelle E. Harless, Chicago, Illinois, Mark P. Gaber, Robert N. Weiner, CAMPAIGN LEGAL CENTER, Washington, D.C., for Appellees. Jason S. Miyares, Attorney General, Charles H. Slemp, III, Chief Deputy Attorney General, Andrew N. Ferguson, Solicitor General, Lucas W.E. Croslow, Special Assistant to the Solicitor General, Annie Chiang, Assistant Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Amicus Commonwealth of Virginia. Alicia Bannon, Yurij Rudensky, BRENNAN CENTER FOR JUSTICE, New York, New York; Nathaniel B. Edmonds, Katherine Berris, James W. Brown, Lindsey Ware Dieselman, Anne Marie Egerstrom, Diogo Metz, Mary E. Rogers, Tor Tarantola, PAUL HASTINGS, LLP, Washington, D.C., for Amicus Brennan Center for Justice. Allison J. Riggs, Noor Taj, SOUTHERN COALITION FOR SOCIAL JUSTICE, Durham, North Carolina, for Amicus Southern Coalition for Social Justice.

Before GREGORY, Chief Judge, and THACKER and HARRIS, Circuit Judges.

Vacated and remanded by published opinion. Judge Harris wrote the opinion, in which Judge Thacker joined. Chief Judge Gregory wrote a dissenting opinion.

PAMELA HARRIS, Circuit Judge:

Plaintiffs Latasha Holloway and Georgia Allen sued the City of Virginia Beach and several local officials, claiming that the City's exclusive use of at-large voting to elect members of its City Council diluted the votes of minority voters in violation of Section 2 of the Voting Rights Act of 1965. Before the district court ruled on that claim, however, Virginia's General Assembly passed a law eliminating at-large voting for most of the seats on the City Council. Even so, the district court held, this case was not moot, the City's old all-at-large electoral system violated Section 2, and the plaintiffs were entitled to an injunction remedying that violation going forward.

We agree with the City that the district court erred in reaching the merits. The General Assembly's action left the plaintiffs challenging – and the district court assessing – an electoral system that no longer governs elections in Virginia Beach. It follows that this case is moot, and we therefore vacate the district court's decisions. But because the plaintiffs may have residual claims against the City's new method for electing its Council, the district court may consider on remand whether the plaintiffs should be granted leave to amend their complaint, or develop the record more fully, to bring any new challenges as part of this proceeding.

I.

A.

Section 2 of the Voting Rights Act of 1965 prohibits any election-related "standard, practice, or procedure" that "results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 52 U.S.C. § 10301(a) ; see § 10303(f)(2) (extending Section 2's protections to "language minority group[s]"). In Thornburg v. Gingles , the Supreme Court established the framework for assessing at-large voting systems under Section 2. 478 U.S. 30, 48–51, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). At-large elections are not "per se violative of [Section] 2." Id. at 46, 106 S.Ct. 2752. But, the Court recognized, "at-large voting schemes may operate to minimize or cancel out the voting strength of racial minorities," and when they do, they are prohibited. Id. at 47, 106 S.Ct. 2752 (cleaned up).

To establish that an at-large system violates Section 2, a plaintiff first must meet three "preconditions," showing that (1) a minority group is "sufficiently large and geographically compact to constitute a majority in a single-member district"; (2) the minority group is "politically cohesive"; and (3) "the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate." Id. at 50–51, 106 S.Ct. 2752. Then, if all three preconditions are met, the plaintiff must show that "under the totality of the circumstances," the at-large system "result[s] in unequal access to the electoral process." Id. at 46, 106 S.Ct. 2752 ; see United States v. Charleston County , 365 F.3d 341, 345 (4th Cir. 2004). In undertaking this "totality of the circumstances" inquiry, courts typically rely on the nine factors set out in the Senate Report accompanying Congress's 1982 amendments to Section 2, including the history of official discrimination in the region, minorities' electoral success, the use of discriminatory electoral devices, and the extent of racially polarized voting. See Gingles , 478 U.S. at 36–37, 106 S.Ct. 2752 ; Charleston County , 365 F.3d at 345.

B.

Virginia Beach, Virginia's most populous city, is governed by a City Council, composed of the City's mayor and ten councilmembers. When this case began, every councilmember was elected at-large – that is, by all City voters, rather than the voters of a single district. This meant that every candidate for City Council had to campaign for the votes of all 450,000 City residents across the City's 249 square miles. In this respect, the district court noted, Virginia Beach was "unique" among Virginia's 13 largest cities, the others of which elected all or most of their councilmembers from individual districts, with only a minority – at most – elected at-large. Holloway v. City of Virginia Beach , 531 F. Supp. 3d 1015, 1032–33, 1084 (E.D. Va. 2021).

In addition, seven of the Council's members, though elected at-large, were required to reside in designated districts. For those seats, in other words, candidates campaigned across the entire City for specific seats corresponding to the districts in which they lived. Such "designated seat plans," the Supreme Court recognized in Gingles , can make at-large elections especially dilutive of minority votes, preventing minority voters from concentrating their votes on a limited number of favored candidates. See Gingles , 478 U.S. at 38–39 & nn.5–6, 106 S.Ct. 2752. The remaining three councilmembers were elected at-large and with no residency requirement.

Two Virginia Beach residents – Latasha Holloway, a Black voter; and Georgia Allen, an unsuccessful Black candidate for City Council – sued, challenging the "at-large election system used to elect members of the City Council of Virginia Beach." J.A. 47. That system, according to the plaintiffs – "in which all councilmembers are elected at-large in citywide elections" – resulted, under the...