Thomas v. Bryant, CAUSE NO. 3:18-CV-441-CWR-FKB

366 F.Supp.3d 786

Joseph THOMAS, et al., Plaintiffs

v.Phil BRYANT, et al., Defendants

CAUSE NO. 3:18-CV-441-CWR-FKB

United States District Court, S.D. Mississippi, Northern Division, Northern Division.

Signed February 16, 2019

Arusha Gordon, Pro Hac Vice, Ezra Rosenberg, Pro Hac Vice, Jon Greenbaum, Pro Hac Vice, Pooja Chaudhuri, Pro Hac Vice, Lawyers' Committee For Civil Rights Under Law, Washington, DC, Caitlyn E. Silhan, Pro Hac Vice, Charles S. Siegel, Pro Hac Vice, Peter A. Kraus, Pro Hac Vice, Waters & Kraus, LLP, Dallas, TX, Robert B. McDuff, The Law Office Of Robert McDuff, Beth L. Orlansky, Mississippi Center For Justice - Jackson, Jackson, MS, Ellis Turnage, Ellis Turnage, Attorney, Cleveland, MS, for Plaintiffs.

Tommie S. Cardin, Brian Parker Berry, Charles E. Griffin, Butler Snow LLP-Ridgeland, Ridgeland, MS, Benjamin McRae Watson, Butler, Snow, O'Mara, Stevens & Cannada, Charles E. Cowan, Michael B. Wallace, Wise, Carter, Child & Caraway, PA - Jackson, Douglas T. Miracle-State Gov. Mississippi Attorney General's Office Jackson, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

Carlton W. Reeves, UNITED STATES DISTRICT JUDGE

In July 2018, plaintiffs Joseph Thomas, Vernon Ayers, and Melvin Lawson filed this suit alleging that the boundaries of Mississippi Senate District 22 violate § 2 of the Voting Rights Act. Defendants Governor Phil Bryant, Attorney General Jim Hood, and Secretary of State Delbert Hosemann deny the allegation and dispute that any violation can be remedied in time for the 2019 election. The parties presented evidence at trial on February 6 and 7, 2019.¹

On February 13, after a thorough review of the evidence and arguments, the Court advised the parties and the Mississippi Legislature that the plaintiffs had proven their case. The Legislature was invited to redraw District 22 prior to consideration of any judicial remedy. The Court's findings of fact and conclusions of law are presented below.

I. Factual and Procedural History

A. The Parties

Plaintiff Joseph Thomas is a native of Yazoo City, Mississippi. He is a banker by profession, a community advocate by avocation, and in his spare time, a published historian of African-Americans in Yazoo City and Mississippi.²

In 2003, Thomas turned his attention to public office. He ran for and won election as Mississippi State Senator for District 21. The District included Thomas's part of Yazoo County and predominantly African-American portions of Madison County, among other places, so its "Black Voting Age Population" (BVAP) was relatively high. He ran again in 2007 but lost in the primary to another African-American candidate. Thomas then sat out the 2011 cycle.

The decennial redistricting process resulted in changes to the Senate map in 2012. Thomas's residence wound up in District 22.

Thomas learned that District 22 now extended into areas of Madison and Bolivar Counties that ultimately led it to have a BVAP of only 50.8%. He was concerned that although technically a majority, such a low BVAP would negatively impact African-Americans' ability to elect their candidate of choice. After all, in District 22, African-Americans' candidate of choice had lost in the 2003, 2007, and 2011 elections.

Thomas contacted the U.S. Department of Justice and urged it to reject the new boundaries. He was not successful. DOJ precleared the plan in September 2012.

In 2015, Thomas decided to throw his hat in the ring. He ran in District 22 against Eugene "Buck" Clarke, the incumbent chairman of the Senate Appropriations Committee. Thomas thought it would be an uphill battle, but "ran hard" and spent "quite a bit" of his own money, he testified. He lost 54% to 46%. Thomas says he was "real disappointed" that his outreach to the majority-white precincts in Madison and Bolivar Counties had not garnered more votes.

Thomas did not file a Voting Rights Act lawsuit in 2015, 2016, or 2017. He testified that he was unaware that an individual could file a § 2 suit until he had a conversation with one of the attorneys in this case in summer 2018. This suit was filed several weeks later.

Plaintiff Melvin Lawson is also a voter in District 22. He has worked and volunteered for political campaigns, including his brother's campaign for Bolivar County Supervisor and Thomas's Senate campaign. Through this experience Lawson found that it is more difficult to get Delta voters to the polls in odd-numbered election years, i.e. , years without Congressional and Presidential races, because in odd-numbered years there are fewer transportation options available on Election Day.

In 2018, Lawson overheard concerned citizens talking about District 22. Weeks later he ran into attorney Ellis Turnage, co-counsel for the plaintiffs in this action, who told him about this suit. Lawson was interested and joined as a plaintiff.

We know little about plaintiff Vernon Ayers other than this: he is a registered voter in District 22. Neither side has elaborated on his situation.

Each plaintiff is African-American.

Defendants Governor Phil Bryant, Attorney General Jim Hood, and Secretary of State Delbert Hosemann constitute the State Board of Election Commissioners.³ All three are sued in their official capacities.

B. District 22

District 22 is the second-largest Senate District in Mississippi, encompassing 2,166 square miles and spanning more than 100 miles from tip to toe. It begins in Bolivar County, runs through Washington, Humphreys, Sharkey, and Yazoo Counties, and finds its end in Madison County. The District looks like this:

Most of District 22 lies in the heart of the Mississippi Delta, the unique alluvial plain occupying the northwest quadrant of the state. The Delta is impossible to completely define, but my colleagues' description from 1982 is a good start:

The Mississippi Delta consists of 19 Delta and part-Delta contiguous counties as follows: Bolivar, Carroll, Coahoma, DeSoto, Grenada, Holmes, Humphreys, Issaquena, Leflore, Panola, Quitman, Sharkey, Sunflower, Tallahatchie, Tate, Tunica, Warren, Washington, and Yazoo. This is a distinct geographical area of the state traditionally featuring an agricultural economy concerned with flood control of the Mississippi River. The geography of the Delta has been colorfully and somewhat accurately described as "beginning in the lobby of the Peabody Hotel at Memphis, Tennessee, and ending at Catfish Row in Vicksburg, Mississippi." Since early times, concentrations of blacks have resided in the Delta area.⁴

John Dittmer calls the Delta "both a clearly defined geographical area and a state of mind."⁵ The benefits of "some of the richest soil in the nation" were shared unequally: the land was worked by "tens of thousands of poor black families" for the benefit of "a relatively small number of white[ ]" landowners.⁶ The Delta was "a place of appalling poverty for the blacks who tilled the land."⁷

As Mississippi has changed over the years, it remains true that "[b]lacks in Mississippi, especially in its Delta region, generally have less education, lower incomes, and more menial occupations than whites."⁸ Updated socio-economic data for District 22 will be discussed below.

The plaintiffs introduced evidence confirming that the Delta is "totally different" from Madison County. Lawson agreed that the differences are geographical and cultural. The Delta is rural, agrarian, and contains "the largest concentration of black voting age population" in Mississippi.⁹ Madison County is populous and suburban, bordering the State's Capitol City, Jackson.

The Madison County precincts situated in District 22, such as the Gluckstadt area, are especially different. A prior redistricting court designated them as a "high-growth area" of the State.¹⁰ Cotton and soybeans are growing in the Delta. The population is not.

In the 2015 election, Thomas won the predominately African-American precincts in Washington, Sharkey, Humphreys, and Yazoo Counties. He lost the predominantly white precincts in Madison and Bolivar Counties.

C. The Experts

1. The Plaintiffs' Experts

The plaintiffs called two experts to testify at trial. Both were qualified by education and experience to give expert opinions in their respective fields, and have previously provided expert testimony in voting cases.

First to testify was Dr. Maxwell Palmer, a political scientist at Boston University. Dr. Palmer analyzed District 22's voting patterns with a technique called "ecological inference" (EI).

At heart, EI "is the process of extracting clues about individual behavior from information reported at the group or aggregate level."¹¹ It is useful in voting cases because "the secret ballot hinders the [research] process and surveys in racially polarized contexts are known to be of little value."¹² EI "estimates the underlying propensity of each group to turn out for an election and to vote for a particular candidate using the estimation technique of maximum likelihood."¹³ The process is generally accepted in voting cases in this Circuit.¹⁴

Dr. Palmer testified that EI is a superior statistical method to use in this case. He said that among other benefits, EI allowed him to run 100,000 simulations of each election in the sample, and provided valuable statistical checks, such as confidence intervals, on the results.

Dr. Palmer used precinct-level voting and Census data to analyze 10 elections in District 22. They consist of the 2003, 2007, and 2015 Senate District 22 elections (i.e. , the "endogenous" elections most relevant to this case), as well as the 2003 Lieutenant Governor and Treasurer elections, the 2007 Insurance Commissioner election, the 2011 Governor election, and the 2015 Agriculture Commissioner, Secretary of State, and Governor elections (i.e. , the "exogenous" elections with some relevance to this case).¹⁵ All 10 featured contests between white and black candidates. The goal of the endogenous/exogenous comparison was to see if findings were consistent between the Senate races and statewide races also held in odd years in...