Wilkins v. West

Present: All the Justices

S. VANCE WILKINS, SPEAKER OF THE
HOUSE OF DELEGATES, ET AL.

v. Record No. 021003 OPINION BY JUSTICE ELIZABETH B. LACY
November 1, 2002
DOUGLAS MACARTHUR WEST, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF SALEM
Richard C. Pattisall, Judge

Article II, § 6 of the Constitution of Virginia provides:

Members of the House of Representatives of the
United States and members of the Senate and of the
House of Delegates of the General Assembly shall be
elected from electoral districts established by the
General Assembly. Every electoral district shall
be composed of contiguous and compact territory and
shall be so constituted as to give, as nearly as is
practicable, representation in proportion to the
population of the district. The General Assembly
shall reapportion the Commonwealth into electoral
districts in accordance with this section in the
year 1971 and every ten years thereafter.

The official 2000 United States census data showed that

Virginia's population had grown 14.4% over the previous decade,

from 6,187,350 residents in 1990, to 7,078,515 in 2000. The

data also showed that the population growth in Northern

Virginia and suburban areas of the state was greater than in

other areas of the state. Some of the central cities and rural

areas of the Commonwealth had experienced a decrease in

population. To comply with Article II, § 6 the Virginia

General Assembly was required to enact new electoral districts

in 2001.
 After receiving the 2000 census data, the General Assembly

enacted Senate Bill 1 (SB 1) and House Bill 1 (HB 1) creating

new electoral districts for the Virginia General Assembly. The

bills were signed by the Governor on April 21, 2001 and

subsequently submitted to the Attorney General of the United

States for pre-clearance as required by the Voting Rights Act,

42 U.S.C. §§ 1971 through 1974(e) (2000), (VRA). On June 15,

2001 and July 9, 2001, respectively, HB 1 and SB 1 received

pre-clearance from the Attorney General.

This litigation was initiated by a Bill of Complaint filed

on June 26, 2001 by 46 complainants against the Governor,

Lieutenant Governor, Acting Attorney General, Secretary of the

State Board of Elections, and six members of the General

Assembly. 1 An amended bill of complaint was filed on August

10, 2001. Count I alleged that House of Delegates Districts

49, 63, 69, 70, 71, 74, 75, 77, 80, 89, 90, 92, and 95, and

Senate Districts 2, 5, 9, 16, and 18, were "designed with the

avowed, race-based goal of maximizing the number of minority

voters" in violation of Article I, §§ 1 and 11 of the

Constitution of Virginia. Count II asserted that the pairing

of incumbent female legislators in SB 1 and HB 1 intentionally

1
The Lt. Governor was never served with process and the
trial court granted the defendant legislators' motion to quash
service of process on them. The Acting Attorney General was
dismissed as a defendant.

2
"disproportionately increase[d] the odds against re-election of

certain Democratic female legislators" in violation of Article

I, §§ 1 and 11 of the Constitution of Virginia. Count III

asserted that the legislative redistricting plans

unconstitutionally discriminated against Virginia voters on the

basis of political viewpoint by disproportionately pairing

incumbent Democratic legislators. In Count IV, the

complainants asserted that 17 House Districts and 9 Senate

Districts were not comprised of "contiguous and compact

territory" as mandated by Article II, § 6 of the Constitution

of Virginia. Finally, in Count V, the complainants charged

that the districts were unequal on the basis of population

because the Commonwealth did not use statistically adjusted

census figures in violation of Article I, §§ 1 and 11 of the

Constitution of Virginia.

Prior to trial, the defendants filed various motions to

dismiss and a motion for change of venue. The trial court

granted the defendants' motion to dismiss Count V but denied

the motions requesting dismissal on the basis of standing and

for a change of venue. A three-day, ore tenus hearing was held

in September 2001. Following presentation of the complainants'

evidence, the trial court granted the defendants' motion to

strike Counts II and III. The claims of racial gerrymandering

and non-compact and non-contiguous election districts contained

3
in Counts I and IV were submitted to the trial court for

determination.

The trial court filed its amended written opinion on March

13, 2002. Applying a definition of contiguous that required

reasonable internal access, the trial court concluded that

Senate Districts 1, 2, and 6, along with House Districts 74,

91, and 100, did not satisfy the contiguous and compactness

requirements of Article II, § 6 of the Constitution of

Virginia. The trial court made no finding regarding challenged

Senate Districts 3 and 4 because no evidence was introduced

relating to those districts. The court found that the

remaining districts challenged in Count IV reasonably complied

with the requirements of Article II, § 6 as interpreted by this

Court in Jamerson v. Womack, 244 Va. 506, 423 S.E.2d 180

(1992). 2

The trial court struck as unconstitutional House Districts

62, 69, 70, 71, 74, 77, 80, 89, 90, 91, 92, and 95, and Senate

2
A number of discrepancies exist regarding the challenged
districts and the holdings of the trial court. In its amended
opinion the trial court listed House District 75 as a district
challenged by complainants as not compact and contiguous,
although District 75 was not listed in Count IV of the amended
Bill of Complaint. The trial court found that District 75 did
not violate Article II, § 6. Similarly the complainants
challenged House District 79, but the trial court did not
identify that district as a challenged district in Count IV
and made no ruling on the district. Finally, the trial court
held Senate District 6 in violation of Article II, § 6

4
Districts 2, 5, 9, 13, 16, and 18. 3 The trial court held that

those districts violated Article I, §§ 1 and 11 because

the General Assembly of Virginia has subordinated
traditional redistricting principles to race in
drawing district lines. The Court having found that
race was the predominate factor in drawing district
lines has applied strict scrutiny to determine if
race was necessary to further some compelling state
interest and in all of the challenged districts,
with the exception of those previously mentioned,
the Commonwealth has failed to show that the
electoral districts for the House of Delegates or
Senate achieve any compelling state interest or
action that it is narrowly tailored to fit such
interest.

Based on these findings, the trial court enjoined the

defendants from conducting any elections under HB 1 or SB 1

until the General Assembly enacted, and the Governor signed,

legislation establishing "new redistricting statutes for the

House of Delegates and the Senate Districts that abide by all

of the requirements of the Constitution of the United States

and Constitution of Virginia, specifically adhering to Article

I, § 1, Article I, § 11, and Article II, § 6, and the other

laws of the Commonwealth . . . ." The trial court also ordered

that "an election to elect representatives from each new

although the amended Bill of Complaint did not claim such a
violation.
3
The trial court stated in its amended opinion that
Senate District 13 and House Districts 62, 64, 83, and 91 were
challenged as racially gerrymandered. These districts were
not listed in the amended Bill of Complaint as violating
Article I, § 11. The trial court struck District 91, upheld
District 64, and made no ruling on District 83 on this issue.

5
electoral district enacted for the House of Delegates be

conducted in 2002, as provided by law, to take office as

members of the House of Delegates upon convening of the 2003

session of the General Assembly of Virginia." The trial court

denied the defendants' motion for a stay pending appeal.

The defendants filed a notice of appeal, a petition for

appeal, a motion for expedited appeal, a motion for a stay of

the trial court's order pending appeal, and a petition for a

writ of prohibition. We granted the defendants' petition for

appeal and motion for stay pending appeal. 4

On appeal, the defendants raise eight assignments of

error. The first three assignments address the substantive

findings of the trial court in this matter: (1) whether the

complainants lacked standing to pursue the litigation; (2)

whether certain districts met the constitutional requirement of

compactness and contiguity; and (3) whether certain districts

were racially gerrymandered. These issues, in our view, are

dispositive of this appeal.

I. STANDING

The defendants argue that the trial court should have

dismissed the bill of complaint because the complainants failed

4
Governor Mark R. Warner was substituted for former
Governor James Gilmore, III, by order entered April 12, 2002
pursuant to Rule 2:16. Governor Warner withdrew as an

6
to establish that they had standing to pursue the claims

asserted. Relying on this Court's precedent, the defendants

maintain that standing to challenge an electoral district

should not be inferred solely from residency in that district.

Rather, the defendants argue, standing requires "a personal

stake in the outcome" of the litigation. Cupp v. Board of

Supervisors, 227 Va. 580, 589, 318 S.E.2d 407, 411 (1984)

(emphasis deleted). Merely advancing a public right or

redressing a public injury cannot confer standing on a

complainant. Virginia Beach Beautification Comm'n v. Board of

Zoning Appeals, 231 Va. 415, 419, 344 S.E.2d 899, 902 (1986).

Thus, the defendants assert that to establish standing, the

complainants were required to show that they suffered racial,

gender, or political discrimination, and, if the injury was

racial in nature, the complainant had the burden of

establishing his or her race.

Because proof of residency was the only evidence produced

by the complainants relative to standing, the defendants argue

that the trial court erred in not granting their motion to

dismiss the amended bill of complaint for lack of standing.

The defendants further assert that the trial court erred in

failing to dismiss the complainants' challenges to four House

appellant and participated in the appeal of this case as an
amicus curiae on behalf of the complainant-appellees.

7
districts and three Senate districts because none of the

complainants resided in those districts.

The complainants contend that proof of residency in a

particular district is sufficient to establish standing to

challenge actions in other districts as well as the district of

residence.

Standing to maintain a challenge to redistricting

legislation is an issue of first impression in this

Commonwealth. In our previous redistricting cases, we recited

the status of the various complainants, but we did not address

the elements required to establish standing to maintain such an

action. Wilkins v. Davis, 205 Va. 803, 139 S.E.2d 849 (1965);

Davis v. Dusch, 205 Va. 676, 139 S.E.2d 25 (1964); Brown v.

Saunders, 159 Va. 28, 166 S.E. 105 (1932). The complainants

here, while acknowledging that the issue of standing in this

case is one of state jurisprudence, suggest that we adopt the

standing principles enunciated by the Supreme Court in United

States v. Hays, 515 U.S. 737 (1995), for cases involving

challenges to redistricting legislation.

The plaintiffs in Hays challenged Louisiana's

congressional redistricting statute, asserting it was racially

gerrymandered in violation of the Fourteenth Amendment to the

United States Constitution. The challenge was directed at

District 4 of the plan but the plaintiffs were residents of

8
District 5. The Supreme Court concluded that the plaintiffs

did not have standing to maintain the challenge because

standing requires the plaintiff to show that he or she has

suffered an " 'injury in fact' – an invasion of a legally

protected interest that is (a) concrete and particularized, and

(b) actual or imminent, not conjectural or hypothetical."

Hays, 515 U.S. at 743 (quoting Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992)). And, in an equal protection claim,

only "'those persons who are personally denied equal treatment'

by the challenged discriminatory conduct," suffer such injury.

Hays, 515 at 743-44 (citations omitted). Thus, the Supreme

Court rejected the proposition that any citizen of a state

would have standing to challenge a redistricting statute on an

equal protection claim regardless of whether such citizen was

personally denied equal treatment.

Recognizing that demonstration of a particularized injury

in the racial gerrymandering context may be difficult, the

Supreme Court concluded that an inference of particularized

injury was created for a plaintiff who resides in a racially

gerrymandered district because such resident "has been denied

equal treatment because of the legislature's reliance on racial

criteria . . . ." Id. at 745. This inference vests the

resident of the district with standing in federal court to

challenge the use of racial classification in creating that

9
district. A person who does not live in such a district does

not suffer such harm and is not entitled to the inference of

harm, but may establish standing nevertheless, if he or she

produces specific evidence to show individualized injury

resulting from racial classifications. "Unless such evidence

is present, that plaintiff would be asserting only a

generalized grievance against governmental conduct of which he

or she does not approve." Id.

Like federal standing jurisprudence, our requirement that

a complainant show a particularized injury applies to claims of

racial gerrymandering under Article I, §§ 1 and 11 of the

Constitution of Virginia. While specific evidence of personal

harm in the redistricting context may be difficult to show, we

agree that residents of a racially gerrymandered electoral

district "suffer the special representational harms racial

classifications can cause in the voting context." Id.

Accordingly, we, like the federal courts, will consider proof

of residency in an alleged racially gerrymandered district as

sufficient to establish standing to challenge that district

without further proof of personalized injury. Standing can

also be shown by a non-resident of the district who produces

specific evidence of a particularized injury arising from the

alleged racial gerrymandering.

10
 While this standard was developed in the context of racial

gerrymandering claims, we believe the same standard is

appropriate to establish standing for allegations that

electoral districts violate the compactness and contiguous

requirements of Article II, § 6 of the Constitution of

Virginia. If a district fails to meet the compactness and

contiguous requirements, residents of that district are

directly affected by the legislature's failure to comply with

the Constitution of Virginia. In the absence of residency in a

challenged district, a complainant can establish standing only

by showing a particularized injury.

The complainants claim that any citizen of the

Commonwealth has standing to challenge any district based on

violations of Article I, §§ 1 and 11 or Article II, § 6 because

an unconstitutional configuration of one district may have an

impact on the drawing of all other districts. We reject this

rationale as a basis for establishing standing. It is true

that if a district must be reconfigured, another district or

districts will be affected; however, this fact does not give

rise to any inference that every district will be affected, or

that such effect will have a constitutional impact on every

citizen. Furthermore, any attempt to identify in this forum

which district or districts will be affected by legislative

action in reconfiguring the districts is entirely speculative.

11
The fact that a putative complainant's district may be affected

is insufficient to establish the particularized injury required

for standing in a redistricting case.

Applying these principles to the record in this case, we

conclude that the trial court erred in denying the defendants'

motion to dismiss those claims challenging electoral districts

in which no complainant resides and no evidence of injury to

non-resident complainants was produced. Specifically, the

trial court had no jurisdiction to consider claims against

Senate Districts 1, 6, and 13, and House Districts 62, 83, 91,

and 100. Accordingly, we will vacate the judgment of the trial

court with regard to those districts and will not consider them

further. 5

II. COMPACT AND CONTIGUOUS DISTRICTS

Article II, § 6 of the Constitution of Virginia requires

that electoral districts adopted by the General Assembly be

"composed of contiguous and compact territory." The trial

court held that the contiguity requirement included a

reasonable opportunity for travel within the district. The

trial court also determined that it was not bound by the

expert's testimony regarding compactness, and it concluded that

it was the court's responsibility to "examine each district in

12
context of its geographical form and structure in relation to

other portions of the district . . . ." Of the districts which

complainants had standing to challenge, Senate District 2 and

House District 74 were found by the trial court to violate the

requirements of Article II, § 6 with regard to compactness and

contiguity.

A. Standard of Review

The defendants argue that the trial court erred because it

did not review the legislative action using the "fairly

debatable standard" utilized in Jamerson v. Womack, 244 Va.

506, 423 S.E.2d 180 (1992), and because it construed contiguity

by water to include convenience of travel within the district.

The complainants respond that the trial court correctly found

that contiguity required a reasonable opportunity for access

within the district, and under the standards developed in

Jamerson, the trial court correctly held that the districts in

question were plainly repugnant to the Constitution.

In Jamerson, the complainants asserted that two electoral

districts in the 1991 Senate redistricting plan did not comply

with the compactness requirement of Article II, § 6. In

resolving the issue, we recited the principles applicable to

our review of legislative determinations. First, legislation

5
In light of this holding we do not address whether the
trial court properly considered Senate District 6 in the

13
is entitled to a "strong presumption of validity" and will be

invalidated by the courts only if it clearly violates a

constitutional provision. Id. at 510, 423 S.E.2d at 182.

"[O]nly where the statute in issue is 'plainly repugnant' to a

constitutional provision will we declare it null and void."

Id.(citations omitted).

When the constitutionality of a statute depends on facts,

the determination of those facts by the legislature can be set

aside if it is clearly erroneous, arbitrary, or wholly

unwarranted. If the evidence offered in support of the facts

in issue would lead objective and reasonable persons to reach

different conclusions, the legislative determination is

considered fairly debatable and such a determination must be

upheld by the courts. Id. at 509-10, 423 S.E.2d at 182.

Although Jamerson involved a challenge to the constitutional

requirement of compactness only, these principles are equally

applicable to the current challenge to the requirement of

contiguity.

We also note, as we did in Jamerson, that Article II, § 6

speaks in mandatory terms, stating that electoral districts

"shall be" compact and contiguous. This directive, however,

does not override all other elements pertinent to designing

electoral districts. In making reapportionment decisions, the

absence of a challenge to that district by the complainants.

14
General Assembly is required to satisfy a number of state and

federal constitutional and statutory provisions in addition to

designing districts that are compact and contiguous. To do

this requires the General Assembly to exercise its discretion

in reconciling these often competing criteria. Id. at 511, 423

S.E.2d at 182-83.

Finally, any purpose that may underlie the design of an

electoral district, while relevant to challenges under other

portions of the Constitution of Virginia as discussed below, is

not determinative in a challenge based on Article II, § 6.

Determinations of contiguity and compactness, as we said in

Jamerson, are limited to consideration of the district from a

spatial perspective, id. at 514, 423 S.E.2d at 184, taking into

consideration the other factors which a legislative body must

balance in designing a district.

In summary, if the validity of the legislature's

reconciliation of various criteria is fairly debatable and not

clearly erroneous, arbitrary, or wholly unwarranted, neither

the court below nor this Court can conclude that the resulting

electoral district fails to comply with the compactness and

contiguous requirements of Article II, § 6. We now apply these

principles to Senate District 2 and House District 74.

B. Senate District 2

15
 Senate District 2 is comprised of part of the City of

Hampton, part of the City of Newport News, one precinct of the

City of Suffolk, and one precinct of the City of Portsmouth.

The Portsmouth-Suffolk portion of the district is separated

from the Hampton-Newport News portion by the Hampton Roads body

of water. Travel by motor vehicle between the two portions of

the district is possible by driving four to five miles on the

Hampton Roads Beltway, Interstate Highway I-664.

The trial court first determined that, to meet the

constitutional requirement of contiguity, land masses within a

district that are separated by water must provide for every

part of the district to be accessible "to all other parts of

the district without having to travel into a second district."

We have not previously considered the elements which may

be required to meet the state constitutional mandate of

contiguity. Clearly, a district that contained two sections

completely severed by another land mass would not meet this

constitutional requirement. Moreover, no one disputes that the

geography and population of this Commonwealth necessitate that

some electoral districts include water, and that land masses

separated by water may nevertheless satisfy the contiguity

requirement in certain circumstances.

The trial court's requirement that there be a bridge,

road, or ferry allowing full internal access to all parts of

16
the district is a requirement grounded in the theory that

residents of the district need to have physical access to other

parts of the district. However, such physical access is not

necessary for exercising the right to vote, does not impact

otherwise intact communities of interest, and, in today's world

of mass media and technology, is not necessary for

communication among the residents of the district or between

such residents and their elected representative.

As indicated above, the General Assembly must balance a

number of competing constitutional and statutory factors when

designing electoral districts. In addition, traditional

redistricting elements not contained in the statute, such as

preservation of existing districts, incumbency, voting

behavior, and communities of interest, are also legitimate

legislative considerations. Id. at 512-14, 423 S.E.2d at 183-

84. While ease of travel within a district is a factor to

consider when resolving issues of compactness and contiguity,

resting the constitutional test of contiguity solely on

physical access within the district imposes an artificial

requirement which reflects neither the actual need of the

residents of the district nor the panoply of factors which must

be considered by the General Assembly in the design of a

district. Short of an intervening land mass totally severing

two sections of an electoral district, there is no per se test

17
for the constitutional requirement of contiguity. Each

district must be examined separately.

In this case, the trial court found that Senate District 2

failed the constitutional requirement of contiguity, not

because there was no access between the two portions of the

district, but because the access was unreasonable. The trial

court cites no record evidence supporting its position that the

travel required was unreasonable and our review of the record

shows none.

Similarly, the trial court held that the four or five

mile separation across water rendered the district non-compact

without any further explanation or discussion of evidence

supporting this conclusion. The trial court did note,

however, that "there was no testimony that any particular

district was unacceptably non-compact according to either of

the measures applied by the experts." 6

In our view, the evidence in this record does not rise to

a level of proof implicating application of the fairly

debatable standard. And it is wholly insufficient to support

6
Complainants' expert Dr. Lublin, and defendants' expert
Dr. Webster, both utilized the Reoch/Geographic Dispersion
Method and the Polsby-Popper/Perimeter Compactness Method as
objective measures of compactness. The former measures the
level of compactness by determining the ratio of the area of
the district to the smallest circle that can be superimposed
over the district. The latter computes a ratio based on the

18
a conclusion that Senate District 2 clearly violates or is

plainly repugnant to the compactness and contiguity

requirements of Article II, § 6. Accordingly, we will reverse

the trial court's judgment in that regard.

C. House District 74

The trial court also concluded that House District 74

violated the compactness requirement of Article II, § 6 of the

Constitution of Virginia because a 20-mile long stretch of

land connected the northern portion of the district in Henrico

County to the City of Hopewell, the southern portion of the

district. Using its definition of constitutional contiguity,

the trial court also found that District 74 violated Article

II, § 6 because the City of Hopewell precincts were separated

from the remainder of the district by the James River. No

tunnel, road, or bridge connects this portion of the district

with the remainder of the district and travel through other

districts is required to access the remainder of District 74

from the Hopewell precincts.

In Jamerson, we considered two electoral districts each

covering significantly greater area than House District 74.

We held that the manner in which the General Assembly

reconciled the compactness requirement with the other factors

area of the district compared to a circle that equals the
length of the perimeter of the district.

19
which had to be addressed in creating new electoral districts

was not clearly erroneous, arbitrary, or wholly unwarranted.

Even though reasonable persons may have configured the

district differently in reconciling the various redistricting

factors, applying the fairly debatable standard, we concluded

that the choice of the General Assembly in reconciling these

factors could not be set aside. Id. at 517, 423 S.E.2d at

186.

The evidence in this case showed that House District 74

has the lowest rankings for compactness, but the expert

testimony was that this district did not fall below an

objective standard for compactness. The new District 74

contained 98.3% of the 1991 district. The change from the

1991 district was the reunification of a previously split

precinct in Charles City County, the City of Hopewell

precincts, and two precincts in Henrico County.

The record also shows that the incumbent member of the

House of Delegates from House District 62 was a Republican.

Removing the "highly Democratic" Hopewell precincts from

District 62 made that district a "safer" Republican district.

The changes to House District 74 did not improve the

district's rating with regard to compactness, but they did

bring the district closer to the target population. The black

voting age population (BVAP) fell from 65% to 60%, but the

20
district continues to have more African Americans than any

other district in HB 1.

Although the record shows that travel between the

Hopewell precincts and the remainder of the district requires

travel through another district, there is nothing in this

record showing that such access is unreasonable, unduly

burdensome, or adversely impacts the ability of residents to

secure meaningful representation of their interests or

effective communication with their elected representative.

Furthermore, we think it is significant that this district's

configuration has remained substantially the same for over a

decade, allowing development of relationships and communities

of interest relative to election of delegates. Maintaining an

existing district in this case and removing the Hopewell

precincts from the adjoining district in which the incumbent

is Republican reflects the traditional redistricting

considerations of incumbency.

This record reflects a balancing by the General Assembly

of population equality, incumbency, maintaining communities of

interest, and avoiding retrogression in designing District 74.

While far from the most compact district, and containing a

small portion that is contiguous only by water, nothing in

this record indicates that the District is repugnant to the

constitutional principles of compact and contiguous electoral

21
districts. The expert testimony shows that the district is

within acceptable objective measures of compactness. No one

has testified that communication between the residents of the

district and their elected representative has been adversely

impacted in the past in a substantially similar district, or

will be adversely impacted in the future because of the design

of the district. No intervening land mass separates one

portion of the district from another.

Given the strong presumption of constitutionality

afforded legislative acts, and the fairly debatable standard

we apply when considering the validity of such acts, we

conclude that the trial court erred in holding that District

74 violated the compactness and contiguity requirements of

Article II, § 6 of the Constitution of Virginia.

III. RACIAL GERRYMANDERING

The defendants also assign error to the trial court's

holding that certain house and senate districts violated

Article I, §§ 1 and 11 of the Constitution of Virginia because

they were the product of racial gerrymandering.

A. Standard of Review

We have not previously considered a challenge of this

nature solely under Article I, § 11 of the Constitution of

Virginia. Accordingly, we first address the standards for

evaluating such a claim.

22
 Article I, § 11 of the Constitution of Virginia provides

in pertinent part that "the right to be free from any

governmental discrimination upon the basis of . . . race . . .

shall not be abridged." In Archer v. Mayes, 213 Va. 633, 638,

194 S.E.2d 707, 711 (1973), we held that this provision was

"no broader" than the equal protection clause of the

Fourteenth Amendment to the United States Constitution and

applied the federal rational basis standard of

constitutionality in considering the challenge under the

Virginia provision, even though the Virginia provision, unlike

the federal equal protection clause, identified gender as a

protected class. In subsequent cases involving allegations

that statutes violated both Article I, § 11 of the

Constitution of Virginia and the equal protection clause of

the federal constitution, we applied standards of

constitutionality developed under federal law. We neither

stated nor applied a separate standard for resolution of the

challenge under state law. Hess v. Snyder Hunt Corp., 240 Va.

49, 53, 392 S.E.2d 817, 820 (1990) (statute not

unconstitutional if meets rational basis test, or, if it

affects fundamental right or suspect classification, meets

strict scrutiny test); Mahan v. National Conservative

Political Action Comm., 227 Va. 330, 336, 315 S.E.2d 829, 832

(1984).

23
 The defendants argue that our jurisprudence requires that

review of a legislative act requires application of the fairly

debatable standard discussed above, and that this standard is

simply another way of expressing the federal rational basis

test. We need not resolve this semantics issue. Because the

discrimination clause of Article I, § 11 is congruent with the

federal equal protection clause, we will continue to apply the

standards and nomenclature developed under the equal

protection clause of the United States Constitution to claims

involving claims of discrimination under Article I, § 11 of

the state constitution, including the claims in this case.

In Hunt v. Cromartie, 532 U.S. 234 (2001), the most

recent redistricting case involving a challenge of racial

gerrymandering under the equal protection clause, the Supreme

Court recited the burden borne by the challenger. A party

asserting that a legislative redistricting plan has improperly

used race as a criterion must show that the legislature

subordinated traditional redistricting principles to racial

considerations and that race was not merely a factor in the

design of the district, but was the predominant factor. The

challenger must show that a facially neutral law is

explainable on no other grounds but race. Id. at 241-42. The

Court in Cromartie went on to state

24
 where majority-minority districts . . . are at issue
and where racial identification correlates highly
with political affiliation, the party attacking the
legislatively drawn boundaries must show at the
least that the legislature could have achieved its
legitimate political objectives in alternative ways
that are comparably consistent with traditional
districting principles. That party must also show
that those districting alternatives would have
brought about significantly greater racial balance.

Id. at 258.

If the challenger meets its evidentiary burden, the

electoral district in issue is subjected to strict scrutiny

review, rather than a rational basis test, because the

legislative action was taken on the basis of race, a suspect

category. Under the strict scrutiny standard, the defendant

must show that the district's design was the result of a

compelling governmental purpose and was narrowly tailored to

achieve that purpose. Miller v. Johnson, 515 U.S. 900, 920

(1995).

Additionally, the United States Supreme Court has

repeatedly noted the discretion vested in a legislative body

"to exercise the political judgment necessary to balance

competing interests" in creating redistricting plans, and that

"courts must 'exercise extraordinary caution' " in determining

that an electoral district was motivated by racial, not

political, interests when there is a high correlation in the

voting age population between race and political affiliation.

25
Cromartie, 532 U.S. at 242 (quoting Miller, 515 U.S. at 915-

16).

In this case, the defendants readily acknowledged that

race was a consideration in drawing the district lines. The

General Assembly was required to comply with the provisions of

the VRA which mandate that a redistricting plan not dilute the

African-American voter strength, 42 U.S.C. § 1973 (2000), and

that there be no retrogression in the plan; that is, the plan

must contain no fewer majority minority districts than the

prior plan. 42 U.S.C. § 1973(c)(2000). The criteria adopted

by the General Assembly specifically recognized these

requirements as guiding factors in drawing the new

redistricting legislation. 7

Accordingly, to prevail in this case, the complainants

were required to show that race was the predominant factor

used by the General Assembly in drawing the districts at

issue. Additionally, if the evidence showed a high

correlation in the voting age population between race and

political affiliation, the complainants were also required to

7
The House and Senate committees charged with drafting
the redistricting plans adopted identical criteria:
population equality with a deviation within plus or minus two
percent, compliance with the Voting Rights Act, contiguous and
compact districts, single-member districts, and respect for
communities of interest. In the event of a conflict, priority
was to be given to population equality and compliance with the

26
produce districting alternatives which were comparably

consistent with traditional redistricting principles and which

could have brought significantly greater balance while still

achieving legitimate political objectives.

The trial court concluded that the complainants met this

burden and, with regard to the districts in which the

complainants had standing, declared that in creating Senate

Districts 2, 5, 9, 16, and 18, and House Districts 69, 70, 71,

74, 77, 80, 89, 90, 92, and 95, the General Assembly

"subordinated traditional redistricting principles to race,"

and that the defendants failed to show that these districts

"achieve any compelling state interest or action that . . . is

narrowly tailored to fit such interest."

In determining whether this conclusion was correct, we

look to the underlying findings which formed the basis of such

conclusion as to each of the districts. In doing so we note

that, as in Cromartie, the trial was not long, the evidence

consisted primarily of documents and expert testimony, and

there were no issues involving the credibility of the

witnesses. Cromartie, 532 U.S. at 243. Thus, the record

before us for resolving this evidentiary question is in

virtually the same posture as it was before the trial court.

state and federal constitutional requirements and the Voting
Rights Act.

27
Based on our review of the record, we conclude that the

complainants failed to carry their burden of proof that race

was the predominant factor used by the General Assembly and

that qualifying alternative plans were available.

B. Race as the Predominant Factor

Initially, we note that the complainants' factual

premises supporting their contention that race was the

predominate factor in drawing the districts are, in part,

based on patterns gleaned from considering the redistricting

plan as a whole. These factual premises are, first, the use

of split precincts in majority minority districts was

disproportional, placing minorities in the majority minority

district rather than in the majority white district, and,

because only racial data is available below the precinct

level, these precincts were split based on race, not politics.

Second, where majority African-American boundary

precincts adjoined majority white precincts, the African-

American precinct was consistently placed in the majority

minority district rather than in the majority white district.

This pattern again showed the use of race in designing the

districts, according to the complainants.

And finally, the complainants cited instances where white

Democratic precincts were placed in the white majority

district while the adjoining African-American Democratic

28
precincts were placed in the majority minority district, thus,

repeating a pattern of race-based behavior.

Patterns of behavior of the nature recited above may add

support to the conclusion that race was a predominate factor

in drawing district lines but are not themselves dispositive

of the issue. The challenges in this litigation are to

specific districts, each of which must be considered on its

own merits, and, to prevail with regard to any specific

district the complainants must satisfy their burden of proof

as to that district.

We now turn to the trial court's determinations of racial

gerrymandering assigned as error in this appeal.

1. Senate Districts

a. Senate District 2

Senate District 2 is a majority minority district

comprised of parts of the Cities of Hampton and Newport News,

and one majority African-American precinct each in Portsmouth

and in Suffolk. The trial court found that to create this

district the General Assembly crossed the Hampton Roads body

of water, "grabbing" isolated minority precincts to make up

for minority precincts it "shed" closer to the Newport

News/Hampton core of the district. Crossing geographic and

political boundaries in this manner was "in utter disregard of

traditional redistricting principles," according to the trial

29
court.

The complainants' evidence included maps and charts,

along with expert testimony, showing the district's

configuration, population by race, BVAP, and political voting

patterns in the 1997 gubernatorial race. The complainants'

expert also addressed the Langely precinct in Hampton which

was split between Senate Districts 1 and 2. The portion of

the precinct placed in Senate District 2 had a 36.2% BVAP,

while the portion assigned to the white majority district,

Senate District 1, had a 20.4% BVAP, thus showing that the

division was based on race, according to the complainants.

Finally, the complainants' expert also stated that there were

"several bordering precincts with relatively high

concentrations of Democrats and low concentration of African-

Americans that are excluded from the District." He concluded

that placing the African-American Democratic precincts in the

majority minority District 2 rather than the white Democratic

precincts, further showed that race, not politics, was the

predominant factor in drawing the district boundaries.

While much of this evidence is reflected in the trial

court's conclusions, little, if any, of the defendants'

evidence supporting other reasons for the design of Senate

District 2 is noted. The defendants' evidence showed that

Senate District 2 was under-populated by approximately 15% and

30
thus needed an additional 27,000 people to meet the district

population requirement. The addition of the Suffolk and

Portsmouth precincts added approximately 23,000 people. A net

increase of approximately 1,000 more people resulted from the

removal of 47,000 Newport News residents in the northern part

of the district and the addition of approximately 48,000

residents of Hampton located immediately adjacent to the 1991

district.

The portion of Newport News removed from District 2 was

connected by water, not land, to the remainder of the old

district. The resulting change in the contours of District 2

increased its compactness under both the perimeter and

geographic dispersion measurements when compared to the 1991

district. Finally, the racial profiles of the exchanged areas

were similar.

The defendants' evidence also showed that the changes

made the District more Democratic because the removed portion

of Newport News had a higher percentage of Republican voters

than the added portions of Hampton, Portsmouth, and Suffolk.

Although the complainants asserted that adjacent white

precincts with "high concentrations of Democrats" were

intentionally left out of District 2, their exhibits showed

that those precincts voted less than 50% Democratic in the

1997 gubernatorial race.

31
 Finally, the complainants' expert, Dr. Allan J. Lichtman,

testified that he did not independently look at compactness in

analyzing the challenged districts, did not analyze the

districts for contiguity or communities of interest, and did

not consider incumbency interests as part of his analysis.

Based on this record we conclude that the complainants

did not meet their evidentiary burden of showing that race was

the predominant factor in drawing Senate District 2. Evidence

of the enhanced compactness, contiguity, and population

equality of the District, the increased size of the Democratic

voter population of the District, and the failure of the

complainants' expert to consider significant traditional

redistricting principles adopted by the General Assembly as

criteria for use in its redistricting process undermines the

trial court's conclusion. Furthermore, the record shows that

the section of the Newport News area "shed," according to the

trial court, was not contiguous to the old district except by

water and was not similar in racial makeup to the added

Suffolk and Portsmouth precincts. The added portions of

Hampton were, however, similar in BVAP to the Suffolk and

Portsmouth precincts.

Finally, complainants' evidence that majority minority

precincts were included in District 2 while bordering majority

white precincts were retained in majority white districts does

32
not compel the conclusion that race was the predominant design

factor when considered in conjunction with the evidence as a

whole. Creating a majority minority district mandates placing

minorities in that district and there is no dispute that race

was a factor in drawing the district. Similarly, a single

split precinct, one of only 15 split precincts in SB 1, with

1,375 African Americans unevenly divided between a white

majority district and this majority minority district is

insufficient to show that race was the predominant factor in

designing the split of this precinct or the district itself.

Legislatures must balance competing redistricting

criteria in creating electoral districts. This record

contains substantial evidence that the General Assembly

implemented a number of traditional principles of

redistricting in creating Senate District 2 and, accordingly,

does not support the conclusion that race predominated in the

design of the district. Accordingly, we will reverse the

trial court's judgment that Senate District 2 violated Article

I, §§ 1 and 11.

b. Senate Districts 5, 9, 16, and 18

The trial court also held that the General Assembly

subordinated traditional redistricting principles to race in

creating Senate Districts 5, 9, 16, and 18. The sole basis

cited for this conclusion was the trial court's finding that

33
the General Assembly placed more minority voters in a district

than necessary to provide such voters with a reasonable

opportunity to elect candidates of their choice, and,

therefore, that the districts were not narrowly tailored in a

manner reasonably necessary to comply with the federal

requirements. However, the issue of narrow tailoring is part

of the strict scrutiny test, a test not applicable until after

a determination is first made that race was the predominant

factor in drawing the district. Here, the trial court made no

specific factual findings and cited no evidence relative to

any of these districts in support of its conclusion that race

was the predominant factor in designing each district.

The evidence produced by the complainants to meet their

initial burden of proof regarding Senate District 5 involved

Dr. Lichtman's testimony comparing border precincts and his

conclusion the district was drawn based on race because

African-American border precincts were placed within the

majority minority district and white majority border precincts

were not. The complainants' expert described the design of

the district as having a "boot," looping lines, a "tail," and

artificial peninsulas, all for the purpose of "picking off" or

capturing African-American precincts and avoiding white

precincts.

The defendants' evidence showed that Senate District 5

34
was under-populated by 33,320 people. In adding population,

over 97% of the district's core was retained, the district

improved its compactness by the geographic dispersion method

but decreased in perimeter compactness, and the BVAP decreased

by approximately 4%. Finally, with two exceptions, the areas

added to the District reflected Democratic voting patterns in

excess of 50%.

The evidence produced by the complainants on this issue

for the remaining Senate districts, Senate Districts 9, 16,

and 18, follows a similar pattern to that offered regarding

Senate District 5. As to each district, the complainants'

expert described the design of these majority minority

districts as dependent upon "grabbing" or "picking up"

majority minority precincts while avoiding majority white

precincts, resulting in such shapes as "sickles" and

"peninsulas." This expert also testified that in certain

areas, white Democratic precincts were excluded from majority

minority districts while adjacent majority minority precincts

were included in such districts, leading to the conclusion

that the districts were drawn on the basis of race, not

politics. However, the complainants' expert also testified

that in his analysis he had not considered whether other

traditional redistricting principles such as compactness and

contiguity, communities of interest, or incumbency, were

35
reflected in the design of these districts.

The evidence produced by the defendants showed that these

three Senate districts were all under-populated from a low of

9.9% to a high of 17%, requiring addition of population, that

the redrawn districts were more compact by one or both of the

objective tests used, and that the BVAP percentage declined

with one exception where the BVAP rose from 56.5% to 58.5%.

Finally, the defendants introduced maps and testimony

regarding the political voting behavior in the challenged

districts which showed a high correlation between race and

voting patterns.

We conclude that this record does not support the trial

court's holding that race was the predominant factor in

designing Senate Districts 5, 9, 16, and 18 for many of the

same reasons recited in our conclusion regarding Senate

District 2. Unquestionably, the complainants have shown that

race was a factor in designing these majority minority

districts. Indeed, to comply with the non-retrogression

requirements of Section 5 of the VRA, race had to be a factor

in drawing these districts. The defendants have never

maintained otherwise. The record shows however, that these

districts also were drawn with attention to such factors as

population equalization, compactness and contiguity, retention

of core districts where possible, and enhancement of

36
communities of political interest. We conclude that the

complainants did not meet their "heavy burden" to show that

the General Assembly, in exercising its political judgment to

balance competing interests, was motivated by racial

considerations, and subordinated other traditional

redistricting principles to that end in creating Senate

Districts 5, 9, 16, and 18.

2. House Districts

a. House Districts 92 and 95

The City of Hampton is divided into three electoral

districts: House Districts 91, 92, and 95. In District 92

and District 95, the Hampton precincts are joined with Newport

News precincts. Hampton precincts are combined with the City

of Poquoson and York County in District 91. Because Hampton's

population of 146,437 could support two house electoral

districts, 8 the trial court concluded that Hampton was

"needlessly divided" into three districts "against all

traditional race-neutral principles . . . ."

The trial court's conclusion was based on the following

findings. The boundary between House District 91 and House

District 92 separated whites from African Americans, placing

the African Americans in the majority minority District 92.

This boundary included three split precincts which the court

37
determined followed the pattern of placing African Americans

in the majority minority district. 9 The trial court also found

that minority candidates were unopposed or won election in

House District 92 with over 70% of the votes with a BVAP of

59.3%.

The remaining African-American precincts in Hampton were

placed in House District 95 along with heavily African-

American precincts from Newport News. The western border of

House District 95 abuts a majority white district, House

District 94, and the adjoining white precincts were placed in

District 94 and the African-American precincts in District 95.

As in District 92, the trial court found that the minority

candidate was elected by landslide votes with a BVAP of 59%. 10

The defendants' evidence showed that Hampton had been

split into more than two districts prior to the enactment of

SB 1: former House Districts 91, 92, and 95. Both former

Districts 92 and 95 were approximately 15% below the target

population, and former District 91 was 8.5% below that target.

The underpopulation was addressed by adding the rest of the

City of Poquoson and part of York County to these districts.

8
The target population for a house district is 70,785.
9
A fourth split precinct was shared between Districts 92
and 95.
10
The trial court stated that the BVAP was 59% at the
time. However, the 59% BVAP was based on the 2000 census and
was not representative of the BVAP in 1991 or 1993.

38
While the area encompassed by House District 91 only retained

57% of the previous district, House Districts 95 and 92

retained 93.5% and 95.2%, respectively, of their core. The

defendants' evidence also showed that the voting behavior of

the districts correlated highly with race. The majority of

the Democratic voters were retained in House Districts 92 and

95. The Hampton precincts included in the white majority

District 91 were less Democratic than the neighboring Hampton

precincts retained in the majority minority District 92. The

evidence also showed that the split of the Magruder precinct

between House District 91 and 92 placed more African Americans

in the majority minority House District 92 than in the

majority white House District 91.

This record establishes that the division of Hampton into

3 districts was not a new legislative decision, but followed a

three-way division that existed for at least a decade. The

evidence shows that the redistricting principles of population

equality, partisan voting behavior, and avoiding retrogression

all played a part in designing these two districts. As we

have said before, the complainants bear a heavy burden in

successfully challenging the constitutionality of these

legislative acts. We find that this record does not support

the trial court's conclusion that race was the predominant

factor in designing House Districts 92 and 95.

39
 b. House District 74

In holding that House District 74 was racially

gerrymandered in violation of Article I, §§ 1 and 11, the

trial court cited the shape of the district including a 20

mile "land bridge," and the lack of community of interest

between the African Americans in rural Charles City County and

those in urban northern Henrico and the Hopewell portion of

the district. The trial court concluded that the "grabbing"

of "small, isolated minority communities in Charles City

County and the two precincts in the City of Hopewell in order

to 'preserve' a majority-minority district with a population"

having "no common traditional, economic, or community of

interests with Henrico," amounted to the "suspect use of race

as a proxy to further the neighboring incumbents interests."

Finally, the trial court observed that if avoiding

retrogression was the General Assembly's goal, it could have

created "four compact, politically cohesive majority-minority

districts" in the Richmond, Henrico, and Chesterfield area.

The defendants produced evidence showing that the 1991

district was basically replicated in HB 1. Although District

74 was below the target population for a house district, 98.3%

of District 74 was retained while adding the requisite

population. The new district was more compact than the old,

and its BVAP declined from 65.1% to 59.7%.

40
 The defendants' evidence also showed that the incumbent

representative in the neighboring district, District 62, was a

Republican. Removing the strongly Democratic Hopewell

precincts from District 62 made that district a "safer"

district for the incumbent. Finally, the maps presented by

both the complainants and the defendants showed that the "land

bridge" between the Henrico and Charles City County portion of

the district consisted of the precincts with the fewest

Republican voters.

Based on this record, we conclude that the trial court

erred in determining that race was the predominant factor in

creating District 74. The record shows that race was a factor

in designing the district along with traditional redistricting

principles of retaining core areas, population equality,

compactness and contiguity, partisan voting behavior, and

protection of incumbents. The record does not support the

conclusion that any of these factors were subordinated to

race. Accordingly, we conclude that the trial court erred in

holding that House District 74 was racially gerrymandered.

c. House Districts 69, 70, 71, 77, 80, 89, and 90

The trial court also concluded that the majority minority

House Districts 69, 70, 71, 77, 80, 89, and 90 violated

Article I, § 11. The only evidence cited in support of this

conclusion was election results for these districts showing

41
that, with the exception of seven races, minority candidates

received 74% or more of the votes in each election. The BVAP

in these districts ranged from 53% to 64%, and, therefore, the

court concluded that the districts were "packed," meaning that

they were not narrowly tailored to meet the requirements of

federal law. As stated above, whether districts were narrowly

tailored to comply with federal requirements is a

consideration not raised until the requisite finding of racial

predominance is first made.

The trial court did not reference any specific evidence

or make any specific findings for any of these districts to

support a conclusion that race was the predominant factor in

creating each district. It did, however, cite patterns it

found in the creation of the districts that illustrated the

"subordination of the traditional redistricting principles to

race." These patterns included excessive splitting of

jurisdictional lines, general disregard for keeping regions

intact, abandoning the constitutional requirements of

compactness and contiguity, and an inordinate use of split

precincts in majority minority districts. The trial court,

however, did not identify any particular district in which

these patterns occurred.

We have already made clear that, in the absence of

specific evidence in a specific district, such pattern

42
evidence alone cannot sustain the trial court's finding of

racial discrimination. We also note that the trial court's

own holdings in this case belie its conclusion that matters of

contiguity and compactness have been "generally disregarded"

in creating the majority minority districts. Of the 23 House

and Senate districts challenged under Article II, § 6, the

trial court found only six to be non-compact or non-

contiguous. These numbers do not support a conclusion that

these constitutional requirements were "generally

disregarded."

Finally, the trial court cited the high percentage of

split precincts in majority minority districts as evidence of

race-based district line drawing. Specifically, the court

found that the inclusion of 77% of the 61 precincts split

statewide in the contested districts was not by "coincidence

or happenstance." However, other than those split precincts

discussed above, the court fails to identify the location or

specific impact of any other split precincts on the districts

in question.

The record contains little evidence other than maps or

general charts with regard to House Districts 71, 89, and 90.

Complainants' expert did not analyze these districts

individually, and they are referenced in a single chart

prepared by the complainants' expert to show that the

43
Democratic party voting percentage is higher than the BVAP in

those districts.

The evidence adduced by the complainants to meet their

initial burden of showing that race was the predominant factor

in drawing these districts included testimony by their expert

that in each district where African-American boundary

precincts adjoined white precincts, the African-American

precincts were placed in the majority minority district. This

expert also cited three instances of split precincts in these

districts that again placed more African Americans in the

majority minority district. The complainants' witnesses also

testified regarding the "barbell," "lobster," and "foot with

toes" shapes of the districts which they contended resulted

from the General Assembly's "stretching" districts to include

African-American precincts. The complainants also argued that

the evidence showed that in creating District 69, the General

Assembly drew boundaries that crossed the James River to

include four precincts that were heavily African American but

did not include adjoining white precincts that were also

heavily Democratic, supporting the proposition that the

district was drawn on the basis of race, not politics.

The defendants' evidence included documents and testimony

showing that the population in each of these districts was

from 5% to 27% below the requisite level. In creating the

44
revised districts, the General Assembly retained the

substantial amounts of the districts' cores: 63% in District

69, 70% in District 70, 95% in District 77, and 90% in

District 80. Of the three split precincts in these districts,

the defendants' expert testified that two of the splits

enhanced the compactness rating of the districts involved,

Districts 69 and 77. The splitting of the third precinct, the

Bellwood precinct, resulted in 18.7% African Americans placed

in District 70, and 16.2% African Americans placed in the

majority white precinct, a difference which complainants'

expert agreed was statistically insignificant and would not

support a strong inference of race-based line drawing.

In response to the contention that white Democratic

precincts were not included in majority minority District 69

while African-American precincts were, maps presented by both

the defendants and the complainants showed that the white

precincts adjoining the four African-American precincts north

of the James River in District 69, while voting Democratic,

generally reflected a lower level of Democratic voting

behavior than the four African-American precincts that were

included in House District 69. Finally, with one exception,

the BVAP in each district diminished. The BVAP in District 77

grew by a single percentage point, from 55% to 56%.

45
 We conclude that this record does not support the trial

court's conclusion that "being black was the predominant

factor in being chosen as part of a population making up the

majority-minority districts." As stated above, the use of

race as a factor in designing these districts is conceded.

This record shows that along with race, accommodations for

population equality, incumbency, and political party voting

patterns were made by the General Assembly.

C. Alternative Plans

There is no dispute that in the districts involved in

this case there is a high correlation between race and

political affiliation. Under these circumstances, the

complainants have to show not only that race was the

predominate factor in creating the districts at issue, but

also that alternative designs were available that were

consistent with traditional redistricting principles and that

"would have brought about significantly greater racial

balance." Cromartie, 532 U.S. at 258. However, the evidence

of alternative acceptable plans is sparse.

The trial court stated that other districts could have

been drawn in certain instances. The trial court indicated

the City of Hampton could have been contained in two House

districts and did not need to be split three ways. Similarly,

the trial court stated that "four compact, politically

46
cohesive majority-minority districts can be created in the

Richmond, Henrico, and Chesterfield area without stretching

across vast geographical distances and prominent natural

barriers and ignoring race-neutral criteria." Other than

these statements, the trial court did not discuss the shape or

qualities of such districts or reference any alternative

districts offered by the complainants.

The only alternative districts in evidence were House

Bill 2 (HB 2) and Senate Bill 4, generally referred to as the

Robinson plan and the Miller plan, respectively. The primary

analysis of these bills is found in attachments to the Senate

and House submissions to the Department of Justice required by

the VRA.

House Bill 2 did not limit Richmond, Henrico, and

Chesterfield to 4 districts, nor did it divide Hampton into

only two districts. The record shows that House Bill 2 split

fewer precincts and localities than HB 1, but HB 2 also had a

BVAP of less than 50.5% in six of the majority minority

districts and had a higher population deviation between

districts (+2.96 to –3.33). This record is devoid of any

other alternative plans offered by the complainants. Indeed,

at trial, counsel for complainants objected to the

introduction of Senate Bill 4, stating the bill is "not part

47
of this case. It's not part of our argument or part of the

case that we are putting forward . . . ."

Accordingly, we hold that the complainants failed to

carry their burden of proof as enunciated by the Supreme Court

in Cromartie, thereby eliminating any application of the

strict scrutiny standard.

CONCLUSION

In summary, for the reasons stated above, we will vacate

the trial court's judgment with regard to House Districts 62,

83, 91, and 100 and Senate Districts 1, 6, and 13 because the

complainants did not have standing to pursue claims against

those districts.

We will reverse the judgment of the trial court holding

that Senate District 2 and House District 4 violated Article

II, § 6 of the Constitution of Virginia.

We will reverse the judgment of the trial court holding

that Senate Districts 2, 5, 9, 16, and 18, and House Districts

69, 70, 71, 74, 77, 80, 89, 90, 92, and 95 violate Article I,

§§ 1 and 11 of the Constitution of Virginia. Final judgment

will be entered in favor of the defendants. 11

Reversed and final judgment.

JUSTICE HASSELL, concurring.

11
In light of this holding, we need not address
defendants' remaining assignments of error.

48
 I.

I agree with the opinion of the majority. I write

separately solely to emphasize certain principles that govern

my decision in this case. It is no surprise to anyone that

this redistricting, like most, is highly political. The

judiciary's sole function, however, is to determine whether

legislative districts created by redistricting comport with

the Constitution of Virginia. The judiciary, a separate, co-

equal, and apolitical branch of government, must not concern

itself with the political implications of the challenged

redistricting plan.

Upon consideration of the Constitution of Virginia,

relevant case law, and the decisions of the United States

Supreme Court, I am compelled to conclude that the plaintiffs

in this case failed to establish that race was the predominant

factor that the General Assembly used in creating the

legislative districts. Additionally, upon comparison of the

majority black Senate district that this Court approved in

1992 in Jamerson v. Womack, 244 Va. 506, 423 S.E.2d 180

(1992), with the challenged legislative districts in this

case, I can only conclude that the challenged legislative

districts in this case do not violate Virginia's

constitutional requirements of compactness and contiguity.

II.

49
 A.

HOUSE DISTRICT 74

Article II, § 6 of the Constitution of Virginia states

that "[e]very electoral district shall be composed of

contiguous and compact territory." The circuit court

concluded that several Senate and House Districts violate

these constitutional requirements. However, the only district

that I find troublesome is House District 74 and, therefore, I

will focus my discussion solely upon that district.

Without question, House District 74 has a bizarre shape.

It has a configuration somewhat similar to a diagram of an

"axe handle." However, a comparison of the record in this

case with the record in Jamerson compels me to the inescapable

conclusion that House District 74 is constitutionally

permissible.

In Jamerson, we acknowledged several principles that we

must apply here. We pointed out that legislative

determinations of fact upon which the constitutionality of a

statute may depend are binding upon this Court unless those

determinations are clearly erroneous, arbitrary, or wholly

unwarranted. Jamerson, 244 Va. at 509, 423 S.E.2d at 182. We

recognized, however, that legislative conclusions based upon

findings of fact are subject to judicial review when they are

arbitrary and unwarranted. Id. We stated that every statute,

50
including a statute enacting a redistricting plan, has a

"strong presumption of validity," and we held that

"reapportionment 'is, in a sense, political, and necessarily

wide discretion is given to the legislative body.' " Id. at

510, 423 S.E.2d at 182 (quoting Brown v. Saunders, 159 Va. 28,

36, 166 S.E. 105, 107 (1932)).

Additionally, in this appeal, just as in Jamerson, the

General Assembly must comply with two overarching conditions:

Article I, § 2 of the United States Constitution that compels

"equal representation for equal numbers of people," often

referred to as "one person, one vote," and compliance with the

mandates of the federal Voting Rights Act, 42 U.S.C. § 1971-

74e (2000). Of course, the Voting Rights Act requires that

the General Assembly refrain from diluting black group voting

strength in a redistricting. Jamerson, 244 Va. at 511, 423

S.E.2d at 183 (citing Wesberry v. Sanders, 376 U.S. 1, 17-18

(1964)).

I also observe, with great conviction, that this Court

must be consistent in the application of its precedent.

Fairness dictates that the same principles that this Court

applied in Jamerson, which resulted in the approval of a black

majority Senate district, must be applied in this case.

Applying these principles, I conclude that House District

74 satisfies Virginia's constitutional requirements of

51
contiguity and compactness. The reasons that justify approval

of House District 74 are, in my opinion, more compelling than

the reasons that required approval of Senate District 18 in

Jamerson. In Jamerson, we rejected the plaintiffs' challenges

to two districts; one of those districts was a Senate district

with a majority black voting age population. This district,

Senate District 18, extended from rural Halifax County to the

City of Portsmouth. Senate District 18 also had a bizarre

shape. Just like House District 74 in the present case, the

challenged majority black voting district in Jamerson had a

configuration that extended into a city which allowed the

district to acquire a significant number of black voters.

Unlike Senate District 18 that we approved in Jamerson, most

of House District 74 has been in existence since 1990, and

there is a much stronger community of interest within that

district than Senate District 18. Furthermore, House District

74, which was created as a majority black district in 1991, is

substantially similar today to its 1991 configuration, and

contains 98.3% of the 1991 district which was approved by many

of the legislator-plaintiffs in this case.

B.

Validity of Plaintiffs' Racial Challenge

The litigants agree that race must be a factor in the

redistricting because of the mandate of the federal Voting

52
Rights Act. However, race must not be the predominant factor.

As the Supreme Court stated in Easley v. Cromartie, 532 U.S.

234, 241-42 (2001):

"The Court has specified that those who claim that a
legislature has improperly used race as a criterion,
in order, for example, to create a majority-minority
district, must show at a minimum that the
'legislature subordinated traditional race-neutral
districting principles . . . to racial
considerations.' [Miller v. Johnson, 515 U.S. 900,
916 (1995)]. Race must not simply have been 'a
motivation for the drawing of a majority minority
district,' Bush v. Vera, 517 U.S. 952, 959 (1996)
(O'CONNOR, J., principal opinion) (emphasis in
original), but 'the "predominant factor" motivating
the legislature's districting decision,' Cromartie,
526 U.S. at 547 (quoting Miller, supra, at 916)
(emphasis added). Plaintiffs must show that a
facially neutral law ' "is 'unexplainable on grounds
other than race.' " ' [Cromartie, 526 U.S. at
546]."

The Supreme Court also made the following observation in

Easley v. Cromartie, that is pertinent here:

"The Court also has made clear that the
underlying districting decision is one that
ordinarily falls within a legislature's sphere of
competence. Miller, 515 U.S. at 915. Hence, the
legislature 'must have discretion to exercise the
political judgment necessary to balance competing
interests,' ibid., and courts must 'exercise
extraordinary caution in adjudicating claims that a
State has drawn district lines on the basis of
race,' id., at 916 (emphasis added). Caution is
especially appropriate in this case, where the State
has articulated a legitimate political explanation
for its districting decision, and the voting
population is one in which race and political
affiliation are highly correlated. See Cromartie,
supra, 526 U.S. at 551-[52] (noting that 'evidence
that blacks constitute even a supermajority in one
congressional district while amounting to less than

53
 a plurality in a neighboring district will not, by
itself, suffice to prove that a jurisdiction was
motivated by race in drawing its district lines when
the evidence also shows a high correlation between
race and party preference')."

Id. at 242.

Upon application of these principles to this case, I am

persuaded that the plaintiffs failed to establish that the

General Assembly used race as the predominant factor in the

redistricting plan. Simply stated, the plaintiffs failed to

prove their case as required by law. The undisputed evidence

in the record before this Court is that in Virginia there is a

high correlation between race and politics. The plaintiffs,

therefore, were required to introduce, in evidence, an

alternative plan that showed that the General Assembly could

have achieved its political and traditional districting

objectives without the specific racial configurations that the

General Assembly actually used. The plaintiffs, however,

failed to present an alternative plan that complied with the

criteria required by Easley v. Cromartie.

Without question, this Court has a constitutional duty to

invalidate a redistricting plan if the evidence demonstrates

that race was the predominant factor in the creation of

legislative districts. However, plaintiffs who challenge the

redistricting plan have an obligation to prove their case, and

in this instance the plaintiffs failed to satisfy that

54
obligation. The failure to satisfy this obligation is amply

demonstrated by the testimony of plaintiffs' own expert

witness, who testified that he neglected to consider certain

basic factors that are highly relevant in any redistricting

plan, including the factor of political incumbency. Dr. Allan

J. Lichtman testified as follows:

"Q: If you pick a district to study because it
is black and compare it only to bordering districts
that are white, wouldn't you expect to find that
blacks are more heavily represented inside?

"A: If you are drawing the district based on
race, yes. If you are not drawing the district
based on race, not necessarily. It could be that
there are all kinds of borders even though the
district is less heavily black that they share, that
both have heavy concentrations of blacks or heavy
concentrations of whites, and you wouldn't find that
kind of consistent pattern. So, no, it doesn't
follow.

"Q: Well, let me ask you this: Did you look
at the borders that you used to determine whether on
the other side there were Republican incumbents or
Democratic incumbents?

"A: No.

"Q: And you don't think that would make any
difference in your analysis?

"A: I tested the proposition that the lines
were drawn on a political basis. I looked at the
competitiveness of those districts. I did not look
at the identity of the incumbents or what role they
may or may not have played. I didn't see anything
about that in any of the material presented by the
State."

55
The plaintiffs' failure to establish that the General Assembly

relied predominantly upon race rather than basic political

considerations, such as incumbency, is fatal to the

plaintiffs' case. See Easley v. Cromartie, 532 U.S. at 241-

42.

56