VANDROTH BACKUS, et al.,

Transcription

1 No FILED OFFICE OF "I Ht~ISLERK ~tate~ VANDROTH BACKUS, et al., Appellants, Vo SOUTH CAROLINA, et al., Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA MOTION TO DISMISS OR AFFIRM Robert E. Stepp Counsel of Record Robert E. Tyson, Jr. SOWELL GRAY STEPP ~ LAFFITTE 1310 Gadsden Street Post Office Box Columbia, SC (803) rstepp@sowellgray.com Counsel for Appellees Benjanxin P. Mustian Tracey C. Green WILLOUGHBY & HOEFER, P.A. 930 Richland Street Post Office Box 8416 Columbia, SC (803) Counsel for Appellees Dated: July 20, 2012 THE LEX GROUP pc 1825 K Street, N.W. Suite 103 Washington, D.C (202) (800) Fax: (202) v~vw.thelexgroup.com

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3 QUESTIONS PRESENTED Appellants instituted this action in the United States District Court for the District of South Carolina seeking declaratory and injunctive relief regarding redistricting plans adopted by the South Carolina General Assembly for the State House of Representatives and Congressional districts. The three-judge panel determined that Appellants failed to establish that race was the predominant factor used by the legislature in drawing the districts or to prove that the General Assembly engaged in intentional discrimination in drawing the district lines. In addition, the panel correctly ~ refused to consider Appellants generalized grievances directed against districts in which none of them lived, only considering Appellants racial gerrymandering claims to the extent an individual plaintiff resided in a district that was the primary focus of their claim or provided specific evidence that they have been subjected to a racial classification. The Questions Presented are: 1. Because the district court determined that Appellants failed to prove that the legislature used race as the predominant factor or subordinated traditional race-neutral principles to race as the primary consideration for drawing district lines, should the Court dismiss an appeal that contends, in an argument not presented to the district Court, that strict scrutiny of redistricting plans is required if race was a factor, but not the predominant factor, in the creation of new districts?

4 ii 2. Should this Court affirm the district court s determination that Appellants do not have standing to assert a racial gerrymandering claim concerning districts in which none of them lived and regarding which they did not produce any evidence that they personally were subjected to a racial classification?

5 iii TABLE OF CONTENTS Page QUESTIONS PRESENTED...i TABLE OF CONTENTS...iii TABLE OF AUTHORITIES... vi INTRODUCTION...1 STATEMENT OF THE CASE The Redistricting Process Plaintiffs Allegations Hearing on Respondents Motions to Dismiss Trial Before the Three-Judge Panel The Decision of the District Court ARGUMENT...:.. 15 I. Aside From Being Procedurally Barred, Appellants Fourteenth Amendment Claims Fail as a Matter of Law and are Unsupported by the Record...17

6 iv no Appellants did not raise the "race is a factor" argument below...18 Bo Appellants misstate their burden of proof...19 Co Appellants failed to demonstrate race was the predominant factor...26 Representative Sellers and other legislators Dr. McDonald...28 The court s estimation of the evidence Summary...31 II. Plaintiffs Lack Standing Under United States v. Hays...32 CONCLUSION APPENDIX Excerpt of Trial Testimony of Circuit Court Hearing on March 1 and 2, ḷa

7 V Excerpt of Trial Testimony of Circuit Court Hearing on March I, a Affidavit of Patrick G. Dennis entered February 28, a Excerpt of Trial Testimony of Circuit Court Hearing on January 19, a Defendant s Motion to Dismiss on Behalf of Robert W. Harrell, Jr., With Attached Memorandum to Support, entered December 19, a Plaintiffs First Amended Complaint For a Declaratory Judgment and Injunctive the State of South Carolina, Relief Pursuant to the Fourteenth and Fifteenth Amendments of the United States Constitution and the Voting Rights Act of 1965 entered November 23, a

8 vi TABLE OF AUTHORITIES Page(s) CASES Bartlett v. Strickland, 556 U.S. 1 (2009)...16 Bush v. Vera, 517 U.S. 952 (1996)... 20, 24, 26 Colleton County Council v. McConnell, 201 F. Supp 2d 618 (D.S.C. 2002)... 13, 29 Easley v. Cromartie, 532 U.S. 234 (2001)... 16, 20, 24, 34 Gonzales v. Duenas-Alvarez, 549 U.So 183 (2007)... ~...19 Keyes v. School Dist. No. 1, Denver, 413 U.S. 189 (1973)...36 League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006)...34 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)...33 Miller v. Johnson, 515 U.S. 900 (1995)... passim

9 vii Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977)... 21, 22 Nat l Collegiate Athletic Ass n v. Smith, 525 U.S. 459 (1999)...19 Phillips Chem. Co. v. Dumas Indep. Sch. Dist., 361 UoSo 376 (1960)...2 Quilloin v. Walcott, 434 U.S. 246 (1978)...2, 10 Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1997)...8 Shaw v. Reno, 509 U.S. 630 (1993)... passim Sinkfield v. Kelley, 531 U.S. 28 (2000)... 3, 32, 36 Thornburg v. Gingles, 478 U.S. 30 (1986)...11 United States v. Hays, 515 U.S. 737 (1995)... passim Vieth v. Jubelirer, 541 U.S. 267 (2004)... 34

10 VIII Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)... 2, 20, 21, 22 Washington v. Finlay, 664 F.2d 913 (4th Cir. 1981)...21 CONSTITUTIONAL PROVISIONS U.So Const. amend. XIV...passim U.S. Const. amend. XV...1, 2, 6 STATUTES 42 U.S.C U.S.C. 1973c... 1, 5, 11 RULES Sup. Ct. R Sup. Ct. R. 14.1(a)...2 Sup. Ct. R Sup. Ct. R

11 ix OTHER AUTHORITIES House Bill 3991 (H. 3991)...4 House Bill 3992 (H. 3992)... 4 Public Law (1975)...4. S.C. House of Representatives Redistricting 2011 Home Page, available at http ://re districting, schouse, gov/... 4 Gina Smith, House Approves Redistricting Plans, Dems Plan to Sue, The State, June 15, 2011, available at SubmissionH3991.html... 5

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13 MOTION TO DISMISS OR AFFIRM Pursuant to Supreme Court Rule 18.6, Respondent Robert W. Harrell, Jr., in his capacity as Speaker of the South Carolina House of Representatives, respectfully moves the Court for an order dismissing this appeal or, in the alternative, affirming the decision of the United States District Court three-judge panel entered on March 9, INTRODUCTION Following administrative preclearance of South Carolina s State House of Representatives and Congressional redistricting plans pursuant to Section 5 of the Voting Rights Act, ("VRA"), 42 U.S.C. 1973c, Appellants filed an action in the United States District Court for the District of South Carolina seeking declaratory and injunctive relief. The matter was tried on March 1, 2012 before a three-judge panel. At trial, Appellants alleged (1) a violation of Section 2 of the VRA, 42 U.S.C. 1973; (2) a Fourteenth Amendment racial gerrymandering claim; (3) a convoluted vote dilution claim under the Fourteenth Amendment; and (4) a violation of the Fifteenth Amendment as to both the House and Congressional redistricting plans. Following trial, the district court entered judgment in favor of Respondents. Appellants jurisdictional statement does not present many of the claims raised to the district court. Appellants do not raise their previous vote dilution challenges to the House Plan under Section 2 of the VRA and under the Fourteenth and

14 2 Fifteenth Amendments. Appellants do not seek review of any claims pertaining to the Congressional plan. Appellants therefore have abandoned these issues, leaving the general Fourteenth Amendment claim as the sole argument presented for consideration by the Court. See Quilloin v. Walcott, 434 U.S. 246, 253 n.13 (1978) ("Since this claim was not presented in appellant s jurisdictional statement, we do not consider it."); Phillips Chem. Co. v. Dumas Indep. Sch. Dist., 361 U.S. 376, 386 & n.12 (1960) ("Only issues raised by the jurisdictional statement or petition for certiorari, as the case may be, are considered by the Court."); Sup. Ct. R ("The jurisdictional statement shall follow, insofar as applicable, the form for a petition for a writ of certiorari prescribed by Rule 14..."); Sup. Ct. R. 14.1(a) ("Only the questions set out in the [petition for a writ of certiorari], or fairly included therein, will be considered by the Court."). Appellants also challenge the district court s holding that they lack standing to assert claims as to certain districts, because none of the named plaintiffs resides in those districts. The "central" question presented in this appeal is "whether the Fourteenth Amendment permits a state to use race non-remedially to pack black voters into election districts, over and above the levels the VRA requires." (J.S. 5.) Appellants allege that the district court misunderstood their Fourteenth Amendment packing claim and erred by construing Appellants claim as "a conventional Shaw v. Reno challenge." (Id.) Appellants further contend that the district court "ignored [the] wellestablished Arlington Heights/Mt. Healthy

15 framework of shifting burdens for determining causation in mixed-motive cases" and instead "purported to rely on the line of racial gerrymandering decisions starting with Shaw v. Reno, 509 U.S. 630 (1993)... " (Id.) Finally, Appellants challenge the district court s decision that "Plaintiffs had standing to assert racial gerrymandering claims only if they live in the district that is the primary focus of their.., claim or they provide specific evidence that they personally have been subjected to a racial classification." (Appellants App. A, p. 7a.) (Citations omitted.) As the district court noted, there are two types of equal protection claims that challenge the use of race in reapportionment: racial gerrymandering claims and vote dilution claims--claims that this Court has observed are "analytically distinct." Miller v. Johnson, 515 U.S. 900, 911 (1995) (internal quotation marks omitted); See Also Appellants App. A, p. 5a. Because Appellants have abandoned their vote dilution claim, the only issue presented is whether the House plan constitutes a racial gerrymander in violation of the Fourteenth Amendment. The district court correctly applied Shaw v. Reno in analyzing this claim, and Appellants contention to the contrary is without merit. In rejecting Appellants standing arguments, the district court properly followed this Court s prior rulings in United States v. Hays, 515 U.S. 737 (1995) and Sinkfield v. Kelley, 531 U.S. 28 (2000) (per curiam), among others. Because Appellants claims are foreclosed by this Court s redistricting jurisprudence, the Court should either dismiss

16 4 Appellants appeal or affirm the decision of the district court in its entirety. STATEMENT OF THE CASE This appeal arises out of challenges to the State of South Carolina s enactment of redistricting plans for the South Carolina House of Representatives and the state s Congressional districts. 1. The Redistricting Process. The South Carolina General Assembly s ("General Assembly") redistricting efforts began following the March 23, 2011 release of the official tabulation of the population of the State of South Carolina by the United States Census Bureau pursuant to Public Law (1975). After release of the 2010 Census data and the subsequent reapportionment of Congressional districts, through which the state gained a Congressional seat, South Carolina had 124 House districts and seven Congressional districts. (Resp ts App. p. 186a, 26.) House Bill 3991 (H. 3991) and House Bill 3992 (H. 3992) were the legislative vehicles for redrawing the State House and Congressional districts. See S.C. House of Representatives Redistricting 2011 Home Page, available at The State House and State Senate ultimately passed and ratified, and Governor Nikki R. Haley signed, H and H. 3992, thereby enacting the redistricting plans into law as Act 72 of 2011 ("House

17 5 Redistricting Plan") 1 and Act 75 of 2011 ("Congressional Redistricting Plan") (collectively the "Redistricting Plans"). 2 Subsequently, the General Assembly submitted the plans to the United States Department of Justice ("DOJ") for administrative preclearance pursuant to Section 5 of the VRA. DOJ granted preclearance to each redistricting plan thereby establishing that the enacted plans do not reduce minority voting strength as compared to the pre-existing plans. 2. Plaintiffs Allegations. Following preclearance, Appellants filed a declaratory judgment action on November 11, 2011 challenging the House and Congressional Redistricting Plans. Subsequently, on November 23, 2011, Appellants filed a First Amended Complaint that, inter alia, added McKnight and Mims as 1 The General Assembly passed the House Redistricting Plan on June 22, The vote included the affirmative vote of many Democrats and members of the Legislative Black Caucus. The bipartisan support of H was reflected in public comments made by Representative Harry Ott, House Minority Leader, that "[t]his plan is fair." 2011 House of Representatives Preclearance Submission, Ex Newspaper articles discussing the South Carolina Redistricting Process and H3991, Gina Smith, House Approves Redistricting Plans, Dems Plan to Sue, The State, June 15, 2011, available at html. (Governor Haley signed the House Redistricting Plan on June 28, The General Assembly also passed the Congressional Redistricting Plan on July 26, 2011 with bi-partisan support. Governor Haley signed the Congressional Redistricting Plan on August 1, 2011.

18 plaintiffs ("Amended Complaint"). 3 In the Amended Complaint, Appellants alleged they were registered black voters residing in various House and Congressional districts in the State of South Carolina seeking to challenge the implementation and enforcement of the Redistricting Plans. Appellants sought both declaratory and injunctive relief under Section 2 of the VRA and the Fourteenth and Fifteenth Amendments to the United States Constitution. Appellants alleged that each of the redistricting plans "use race as the predominant factor in drawing election district boundaries" and "result in a diminution in the political power of black voters whose influence is diluted by packing them into election districts in concentrations that exceed what is necessary and lawful to give them an equal opportunity to participate in the political process." (Resp ts App. p. 179a, 2.) Appellants also alleged that the House Redistricting Plan (a) packed black voters into districts in order to create nine new majority-minority seats; (b) wrongfully preserved the twenty-one majority-minority seats that existed under the benchmark plan; (c) reduced the black voting age population ("BVAP") percentage in house districts where blacks allegedly are able to elect a candidate of choice with support of the white community; and (d) disproportionately diminished 3 Originally, Plaintiffs challenged the South Carolina State Senate redistricting plan but voluntarily withdrew that challenge before trial and filed a Second Amended Complaint without the Senate Challenge. The Second Amended Complaint has the same claims as the First Amended Complaint referenced through this motion.

19 7 the political power of black voters in poor, rural counties. (Id. 43, 45.) Similarly, Appellants alleged that Congressional Redistricting Plan (a) unnecessarily adds BVAP to the Sixth Congressional District; (b) reduces the BVAP in other districts, thereby "reducing or eliminating the possibility that black voters in these districts could work together with part of the white community to elect a candidate of choice;" and (c) created a new Seventh Congressional District with a BVAP low enough "to make it unlikely black voters would have an equal opportunity to elect a candidate of choice by joining together with part of the white community." (Id. 47.) Appellants also claimed the redistricting plans "deliberately reduce the number of crossover districts or prevent them from emerging over time through natural population shifts." (Id. 79.) Hearing on Respondents Motions to Dismiss. On December 19, 2011, Respondents moved to dismiss the Amended Complaint on several grounds. Among other arguments, Respondents averred that the Amended Complaint did not state a cognizable claim under Section 2 of the VRA because Appellants failed to allege the presence of a minority group sufficient to constitute a majority in another district. Respondents also argued that Appellants failed to present a reasonable alternative voting practice demonstrating a hypothetical redistricting scheme that would result in an undiluted voting practice. (Resp ts App. pp. 146a-147a, 154a-155a.) See also

20 8 Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 480 (1997) ("Because the very concept of vote dilution implies--and, indeed, necessitates--the existence of an undiluted practice against which the fact of dilution may be measured, a 2 plaintiff must also postulate a reasonable alternative voting practice to serve as the benchmark undiluted voting practice."). Respondents further moved for dismissal based on Appellants failure to allege any intentional or purposeful racial motivation for the Redistricting Plans or for the General Assembly s retention and maintenance of majority-minority districts throughout the state. (Resp ts App. p. 158a-159a.) Finally, Respondents moved to dismiss the claims of certain plaintiffs for lack of standing in that they were not residents of the districts challenged in the Amended Complaint and only alleged generalized grievances against the statewide plans. (Id. at 163a- 164a.) The district court denied the motions to dismiss, but expressed concern about the nature of Appellants claims and required Appellants to define their claim and the districts they challenge, and to provide an alternative remedy plan. (Appellants App. A, p. 4a.) In response, Appellants alleged that twenty-one House districts and one Congressional district were objectionable based on the alleged use of race as the predominant factor in their creation. Of the districts specified, only four plaintiffs resided in a challenged House district and only one plaintiff resided in the challenged Congressional district. Appellants also averred that thirty-nine additional House districts and four additional Congressional districts were objectionable as affected neighbor-

21 9 districts because they were drawn from territory taken from those districts alleged to have been drawn using race as the predominant factor. Appellants further submitted alternative redistricting plans forthe court s consideration which purportedly demonstrated how Respondents could have drawn districts that adhered to race neutral redistricting principles while also continuing to give black voters an equal opportunity to elect candidates in the racially gerrymandered districts. 4. Trial Before the Three-Judge Panel. On March 1, 2012, the panel convened for the parties to present evidence on the Amended Complaint. Pursuant to the court s order and agreement of the parties, 4 the trial was abbreviated by the use of affidavits 5 and deposition testimony, with the panel allowing two days of live testimony. 4 In their Jurisdictional Statement, Appellants state that the trial held in this matter was "dramatically truncated," appearing to suggest that they were somehow disadvantaged in this regard. (J.S. 14.) Respondents note that, not only did Appellants fail to object to the court s abbreviated trial scheduling order, they accepted the proposed time frame s, representing to the court, "[w]e re not complaining. We think it s necessary." (Resp ts App. p. 122a.) ~ Appellants also unfavorably reference the court s rejection of certain portions of an affidavit submitted by Representative Mia Butler-Garrick on the grounds that statements allegedly made by Representative Thad Viers contained therein constituted inadmissible hearsay. Appellants assert that "[w]ere this case to be remanded, plaintiffs would subpoena Rep. Viers to testify, obviating the hearsay objection." (J.S. 13.) But this issue cannot fairly be said to be included in

22 10 Appellants presented the testimony of South Carolina State Representative Bakari Sellers, who insisted that race was the "predominant" if not "the only factor" considered by the General Assembly in the redistricting process. (Resp ts App., p. 26a.) Yet, on cross examination, Representative Sellers recanted, admitting that the General Assembly considered many other factors during the redistricting process and that race, in fact, did not predominate. (Id. at 40a-45a.) Appellants also presented the testimony of Dr. Michael P. McDonald who opined that race was the predominant factor considered by the General Assembly in drawing twenty House districts and the Sixth Congressional District. In reaching his conclusions, Dr. McDonald followed a simplistic twostep approach. First, he identified certain districts that exchanged populations with adjoining districts. (Appellants App. A, p. 11a.) Second, Dr. McDonald reviewed the plan to determine whether these exchanges resulted in increased or decreased BVAP. (Id.) As exchanges of population almost always have differing minority population percentages, it is not surprising that, through the use of this misguided and illogical approach, Dr. McDonald concluded that race must have been the predominant factor in making those adjustments. However, Dr. McDonald conceded on cross examination that his analysis was the questions presented by Appellants and thus is not presented properly to this Court. See Quilloin, 434 U.S. at 253 n.13 ("Since this claim was not presented in Appellants jurisdictional statement, we do not consider it. ) Moreover, by not attempting to subpoena Rep. Viers for trial, Appellants have failed to preserve this issue on appeal.

23 11 flawed and that he had failed to review the Redistricting Plans to determine whether they complied with a number of traditional redistricting principles historically recognized by the courts and adopted by the Respondents as guiding principles in crafting the Plans ("Redistricting Criteria"). 6 Additionally, Dr. McDonald abjured Appellants alternative redistricting plans submitted to the court. Although Appellants previously asserted these plans placed a premium on maintaining core constituencies, improving compactness, and keeping or making communities of interest whole, Dr. McDonald acknowledged that the alternative plans failed to comply with many traditional redistricting principles. (Resp ts App. p. 16a-19a.) Dr. McDonald also stated he could not testify whether his proposed plan would comply with Section 2 or Section 5 of the VRA, and that he had not considered prior court orders recognizing that certain districts should be protected as meeting the requirements of Thornburg v. Gingles, 478 U.S. 30 (1986). (Id. at 19a-24a.) Tellingly, Dr. McDonald testified that he did not expect the court to adopt Appellants alternative plans. (Id. at 24a-25a.) ~ ~ Dr. McDonald acknowledged that he did not consider whether the population exchanges between districts were made in order to recognize communities of interest, maintaining political subdivision boundaries, incumbency, or the specific redistricting criteria adopted by the House. (See, e.g., Resp ts App. p. 6a-Sa; p. 13a-14a.) 7 Appellants also offered testimony via affidavit of United States Representative James E. Clyburn, South Carolina Senator Brad Hutto; and South Carolina Representative Mia Butler Garrick.

24 12 In response, Patrick Dennis, Chief Counsel to the Judiciary Committee for the South Carolina House of Representatives, testified by affidavit that each of the challenged districts complied with the Redistricting Criteria by maintaining the cores of existing districts, moving certain district lines to abide by political subdivision boundaries, protecting incumbents, and reflecting the protection of communities of interest. (See, generally, Resp ts App. pp. 51a-121a.) Dr. Thomas L. Brunell also testified the Redistricting Criteria are racially neutral and reflect traditional redistricting principles, and that Dr. McDonald s opinion was not the result of any statistical analysis or supported by any empirical evidence. 5. The Decision of the District Court. The district court issued its order on March 9, With respect to Appellants Fourteenth Amendment racial gerrymandering claim, the court concluded that Appellants failed to establish that race was a predominant factor in either of the Redistricting Plans. (Appellants App. A, pp. 8a-19a.) The court found that Appellants expert, Dr. McDonald, "relied on incomplete information when reaching his determination that traditional race-neutral principles were subordinated," and "neglected to consider important sources of information in reaching his conclusion." (Id. at 12a.) Particularly troubling for the court was Dr. McDonald s "admission that he failed to consider the guidelines and criteria that the General Assembly devised for the redistricting process, which.

25 13 contained guiding race-neutral principles." (Id.) The district court found that Dr. McDonald "neglected to review the prior three judge panel s decision in Colleton County Council v. McConnell, 201 F. Supp 2d 618 (D.S.C. 2002) even though it contained a discussion of the traditional race-neutral principles that guide South Carolina redistricting." (Id. at 12a-13a.) The failure to consult this information "resulted in his rendering an opinion without considering all the race-neutral principles that have traditionally guided redistricting in South Carolina." (Id. at 13a.) Likewise, the court found Representative Sellers testimony to be "insufficient to show that race predominated in creating the House and Congressional plans." (Id. at 17a.) The court determined Representative Sellers testimony was replete with "generalized statements" that the legislature subordinated traditional race-neutral principles to race, "but he never provided any in-depth explanation as to where or how." (Id.) Moreover, the court found that "[a]t other times, Representative Sellers applauded the General Assembly for abiding by a number of specific raceneutral criteria, such as incumbency protection, and, as relating to the Sixth Congressional District, public testimony." (Id. (internal citations omitted).) In the end, the court concluded that Appellants "focused too much on changes that increased the BVAP in certain districts and not enough on how traditional race-neutral principles were subordinated to race in making those changes," and therefore Appellants "failed to prove a Fourteenth

26 14 Amendment racial gerrymandering claim." (Id. at 18a.) The panel also concluded that Appellants Fourteenth Amendment claim was "not abundantly. clear," (Id. at 4a), and found that there was "no convincing direct evidence indicating that the General Assembly drew the district lines for the purpose of diluting Plaintiffs voting strength." (Id. at 25a.) More importantly, the court determined that Appellants "failed to prove a discriminatory effect." (Id. at 26a.) The court also found that although Dr. McDonald "asserted that certain districts in the plans contain a higher BVAP than necessary to elect a representative of choice... that does not demonstrate dilution" because Dr. McDonald failed to "provide any testimony about the relative voting strength of the allegedly packed African-American voters if they had been placed in another district." (Id.) Additionally, the court concluded that, "[a]lthough [Appellants] offered alternative plans, they did not provide any analysis or explanation demonstrating how their plans show that the House and Congressional plans dilute minority votes... [or]... minimized or cancel~ out minority voting potential." (Id.) At bottom, the court held that Appellants failed to prove that race was the predominant factor in creating the House and Congressional plans. Finally, with respect to standing, the court relied on United States v. Hays, 515 U.S. 737 (1995), to hold that Appellants "failed to introduce specific evidence that they have personally been subjected to a racial classification." (Id. at 8a.) Therefore, in

27 15 assessing the evidence as it related to Appellants Fourteenth Amendment racial gerrymandering claim, the court considered "only those districts in which a Plaintiff resides," (id.) effectively dismissing the Fourteenth Amendment claims by those plaintiffs who did not reside in a challenged district for lack of standing. ARGUMENT The questions presented by Appellants are the same as those that have been addressed and answered by the Court in numerous redistricting decisions over the years. No different result is warranted here. Although the issues have been presented and decided in other cases, Appellants argument that any use of race as a factor requires shifting the burden of proof appears in the present case for the first time on appeal to this Court. Appellants never presented that argument to the district court and their failure to do so precludes their raising it on appeal to this Court. The putative argument is that when race is a factor in developing a redistricting plan, the State must justify its use by proving either the absence of discrimination in crafting the plan or presence of a compelling interest justifying any discriminatory effect. This "race is a factor" argument is erroneous, and the burden clearly is not shifted to Respondents in this case. As correctly noted by the district court, a redistricting scheme will be subjected to strict scrutiny and the burden shifted to the State to prove that the plan is narrowly tailored to achieve a compelling governmental interest only when a

28 16 plaintiff proves that the legislature subordinated traditional race-neutral principles in favor of using race as the primary consideration for drawing lines. (See Appellants App. A, pp. 7a); Easley v. Cromartie, 532 U.S. 234, 241 (2001); Miller v. Johnson, 515 U.S. 900, 920 (1995). The court correctly found that Appellants failed to present any evidence either that race predominated over traditional redistricting criteria in the plans, or that the General Assembly s redistricting efforts were discriminatory or had the purpose or effect of diluting minority voting strength. Even so, the court recognized that, in crafting a statewide redistricting plan, compliance with Section 2 of the VRA, including Bartlett v. Strickland, 556 U.S. 1 (2009), is a compelling state interest, s Appellants also ask this Court to reverse a substantial body of case law in order to grant Appellants standing to assert a statewide racial gerrymandering claim, as opposed to the specific districts in which they reside. Appellants made no showing that they personally were denied equal protection of the laws, but only asserted the exact Although Plaintiffs jurisdictional statement generically claims that "biracial coalitions of whites and blacks elected minority-preferred black candidates between 2003 and 2010," (J.S. 4), as discussed above, Appellants have limited the issues to be considered by this Court to a Fourteenth Amendment racial gerrymandering claim and standing. Therefore, Appellants have abandoned any claim that Respondents either impermissibly destroyed or failed to create coalition districts. Notwithstanding, although Appellants expressly avoid any discussion of Bartlett in their Jurisdictional Statement, Respondents efforts to comply with the requirements of Section 2 remain relevant because they operate to reject Appellants other surviving claims.

29 17 same generalized grievance addressed by this Court in United States v. Hays, 515 U.S. 737 (1995). Accordingly, the district court determined that Appellants have failed to introduce specific evidence that they were personally subjected to a racial classification and appropriately declined to consider racial gerrymandering claims against districts in which a plaintiff did not reside. In sum, this Court s prior holdings directly foreclose each of Appellants claims and Appellants have not presented adequate or compelling grounds for this Court to revisit these issues. Instead, Appellants failed to make the requisite evidentiary showing below and merely implore this Court for another bite at the apple. Because Appellants failed to both meet their burden below and cannot demonstrate any error of the decision reached by the three-judge panel, this matter should be dismissed or, in the alternative, the judgment below should be affirmed. Aside From Being Procedurally Barred, Appellants Fourteenth Amendment Claims Fail as a Matter of Law and are Unsupported by the Record. Appellants argue that "[t]he lower court misunderstood this Court s predominant factor line of cases" (J.S. 24), and assert that race can be a factor in redistricting only when the VRA explicitly requires it. (J.S ) This argument fails for several reasons. First, Appellants never presented this issue to the district court, instead relying upon the argument that race was the predominant factor.

30 18 Second, Appellants employ the wrong test and misstate the level of proof required in a Fourteenth Amendment gerrymandering case to shift the burden to the defendants. Third, Appellants attempt to weave in arguments and standards related to vote dilution and other discrimination claims even when the only claim before this Court is specifically limited to racial gerrymandering. Fourth, as recognized by the court below, Appellants racial gerrymandering claims necessarily fail because Appellants neither presented specific evidence that demonstrated they were personally subjected to a racial classification, nor established that race was the predominant factor in either the House or Congressional redistricting plans. (Appellants App. 4a-19a.) Similarly, the court rejected Appellants vote-dilution claims because Appellants were unable to prove either a discriminatory purpose or discriminatory effect. (Id. at 23a). Therefore, regardless of what level of proof is actually required to invoke strict scrutiny, Appellants fail to demonstrate how the evidence they actually introduced at the trial was sufficient to shift the burden. Appellants did not raise the "race is a factor" argument below. Appellants argue for the first time on appeal that the presence of race as a factor--not the predominant factor--shifts the burden of proof to the State. Appellants did not raise that issue in the Amended Complaint. (Resp ts App. p. 179a, 2) (complaining about "race-based redistricting schemes that use race as the predominant factor in

31 19 drawing election district boundaries.") The court only analyzed the issues based on the allegations actually made--that the General Assembly used race as the predominant factor in drawing the plans, (See J.S. pp. 8a-19a (discussing Plaintiffs failure to prove race was the predominant factor in the legislature s districting decisions))--and the existing precedent of this Court. Appellants argument should not be considered by this Court. E.g., Gonzales v. Duenas- Alvarez, 549 U.S. 183, 194 (2007) ("[T]he lower court did not consider the claims, and we decline to reach them in the first instance."); Nat l Collegiate Athletic Ass n v. Smith, 525 U.S. 459, 470 (1999) ("[W]e do not decide in the first instance issues not decided below."). Appellants misstate their burden of proof. As recognized by the district court, a party challenging election redistricting can bring two types of Fourteenth Amendment equal protection claims: (1) a racial gerrymandering claim, or (2) a vote dilution claim. (Appellants App. A, p. 5a.) "Whereas a vote dilution claim alleges that the State has enacted a particular voting scheme as a purposeful device to minimize or cancel out the voting potential of racial or ethnic minorities, an action disadvantaging voters of a particular race, the essence of the equal protection claim recognized in Shaw is that the State has used race as a basis for separating voters into districts." Miller, 515 U.S. at 911 (internal quotations and citations omitted).

32 20 To establish a gerrymandering claim under the Equal Protection Clause, a plaintiff has the high burden of proving that the legislature s motive "was predominantly racial, not political," Easley v. Cromartie, 532 U.S. 234, 241 (2001), and is "unexplainable on grounds other than race." Shaw, 509 U.S. at 643 (quoting Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)). Additionally, a plaintiff also is always required to prove that the legislature subordinated traditional race-neutral principles, such as compactness, contiguity, maintaining cores of districts, and respect for political subdivisions or communities of interest, to race when drawing district boundaries. See Bush v. Vera, 517 U.S. 952, 959 (1996). However, "[w]here these or otherrace-neutral considerations are the basis for redistricting legislation, and are not subordinated to race, a state can defeat a claim that a district has been gerrymandered on racial lines." Miller, 515 at Therefore, a racial gerrymandering claim requires proof that the legislature used race as the predominant factor in drawing election districts and subordinated traditional race-neutral principles to race as the primary consideration for drawing district lines. (Id. at 915.) In contrast, the "essence of a vote dilution claim under the Fourteenth Amendment is that the State has enacted a particular voting scheme as a purposeful device to minimize or cancel out the voting potential of racial or ethnic minorities." (Appellants App. A, p. 23a) (citing Miller, 515 U.S. at 911) (internal citations and quotations omitted). A vote dilution claim requires evidence of both a

33 21 discriminatory purpose on the part of the legislature enacting the plan and a discriminatory effect on the racial minority s voting potential. Washington v. Finlay, 664 F.2d 913, 920 (4th Cir. 1981). With these requirements in mind, the district court correctly used the test set forth in Miller for Fourteenth Amendment gerrymandering claims: only when a plaintiff shows, "either through circumstantial evidence of a district s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature s decision to place a significant number of voters within or without a particular district," will the State be required to "demonstrate that its districting legislation is narrowly tailored to achieve a compelling interest. Miller, 515 U.S. at 916, 920. (See also, Appellants App. A, p. 6a.) However, Appellants support their novel standard that using race as a factor shifts the burden to the state by conflating standards and cases that are relevant to vote dilution cases or other race-based claims with those pertaining to Fourteenth Amendment equal protection claims generally, and to their gerrymandering claim specifically. Consequently, they incorrectly reach the conclusion that if race is a factor in a redistricting plan, it is necessarily discriminatory and the burden then shifts to the state to prove that its consideration of race was for a remedial justification or that the plan has a race-neutral purpose. In order to do so, Appellants rely heavily on this Court s opinions in Village of Arlington

34 22 Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) ("Arlington Heights") and Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977) ("Mt. Healthy") to support their contention that the district court used the wrong standard. These vote dilution cases do not support Appellants arguments; however, and Appellants never articulate why those cases should apply to the facts of this case instead of the carefully outlined and repeatedly cited "predominant factor" test used in gerrymandering cases. For example, in Arlington Heights, this Court held that in order to establish a Fourteenth Amendment violation; a plaintiff need not prove that the challenged action was motivated solely by a purpose to discriminate. Under the principles of Mt. Healthy (decided the same day as Arlington Heights), if a plaintiff is able to show that a discriminatory purpose was a motivating factor in the redistricting process, the burden shifts to the defendant to demonstrate that the same redistricting would have occurred even if a discriminatory purpose had not motivated the defendant. Mt. Healthy, 429 U.S. at 287 Thus, the Arlington Heights/Mt. Healthy framework involves the following analytical steps when evaluating a vote dilution claim. First, a plaintiff must establish a prima facie case of purposeful vote dilution. Arlington Heights, 429 U.S. at Second, assuming a plaintiff can make such a showing, the burden shifts to the defendant to establish that the redistricting in question would have occurred even absent the alleged purpose to dilute minority voting strength. Id. at 271 n.21 ("Proof that the decision by the

35 23 [defendant] was motivated in part by a racially discriminatory purpose would not necessarily have required invalidation of the challenged decision. Such proof would, however, have shifted to the [defendant] the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered."). These cases are inapplicable because they are confined to vote dilution claims, which are not present in the pending case. Moreover, under the Court s framework, the burden does not shift unless and until it is shown that a decision was motivated at least in part by a racially discriminatory purpose. In the present case, Appellants failed to show that race was the "dominant," "primary," or even a "motivating" factor. Thus, even assuming arguendo that the vote dilution burden shifting standard is applicable to Appellants gerrymandering claims in this case, Appellants have failed to meet the standard discussed above. Appellants convoluted proposal also ignores this Court s acknowledgement that "[r]edistricting legislatures will almost always be aware of racial demographics; but it does not follow that race predominates in the redistricting process." Miller, 515 U.S. at 916 (emphasis added). In fact, "redistricting differs from other kinds of state decisionmaking in that the legislature always is aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors." Shaw, 509 U.S. at 646. However, "[t]hat sort of race consciousness does not

36 24 lead inevitably to impermissible race discrimination."9 Id. Consequently, "[s]trict scrutiny does not apply merely because redistricting is performed with consciousness of race." Vera, 517 U.S. at 965. Instead, a racial gerrymandering equal protection violation exists only when the evidence establishes that "traditional redistricting principles have been subordinated to race," and strict scrutiny applies only when race is the "dominant and controlling" consideration in drawing district lines. 10 Miller, 515 U.S. at 913, 916. Only after a plaintiff has established that race was the predominant factor in drafting a redistricting plan will strict scrutiny apply and require the state to show that the redistricting plan at issue is narrowly tailored to meet a compelling governmental interest. Id. at 920. Appellants never met this threshold requirement. 9 Appellants argue that race can be a factor in redistricting only when the V-RA explicitly requires it, and if race is otherwise used as even a consideration, the burden shifts to the defendants to justify its use. (J.S ) However, because South Carolina is required under Section 5 of the VRA to submit its reapportionment plans to the DOJ for preclearance; thus, race always must be considered in an effort to avoid retrogression. Consideration of race does not equate to a conclusion that race predominated merely because the legislature had an awareness of race. Miller, 515 U.S. at If the threshold was to show only that race was "a factor," there would be no purpose served by the Court s rulings about race being a "predominant factor." This Court stated in EasIey v. Cromartie that "It[ace must not simply have been a motivation.. but the predominant factor motivating the legislature s districting decision." 532 U.S. 234, 241 (2001) (internal citations omitted). This predominant factor discussion would be meaningless if a plaintiff only had to show race was a factor.

37 25 As a covered jurisdiction under the VRA, "It]he General Assembly had to consider race to create districts that complied with federal law..., 11 (Appellants App. A., pp. 18a-19a.) However, the court was "satisfied that the General Assembly did not overly rely on race in a manner that runs afoul of the Fourteenth Amendment." (Id.) Appellants failed to demonstrate intentional discrimination on the part of the General Assembly or otherwise demonstrate that race predominated in the drawing of the House plan. See Miller, 515 U.S. at 915 ("Although race-based decision-making is inherently suspect, until a claimant makes a showing sufficient to support that allegation the good faith of a state legislature must be presumed.") Appellants reasoning fails to recognizes "the complex interplay of forces that enter a legislature s redistricting calculus," and that "the distinction between being aware of racial considerations and being motivated by them may be difficult to make." Id. at Under Appellants theory, plaintiffs merely would need to allege that race was a factor considered by the State--which it always is--in order to shift the burden to the state to prove that race was used for a remedial purpose or that the plan has a race-neutral purpose. The burden of proof would never lie with the claimant and states would face the burden of having to defend almost n The South Carolina House specifically adopted guidelines and criteria that required compliance with United States Supreme Court decisions and the VRA. (Appellants App. A, p. 9a.) Although Appellants alleged that the General A~sembly improperly engaged in "packing" certain districts, contending that they should have been maintained as crossover districts, Appellants have abandoned this issue on appeal.

38 26 every redistricting action, even if the plaintiff produces nothing more than bare allegations. Appellants claims of error are incorrect as a matter of law, unreasonable and unworkable in their proposed application and therefore, do not bear consideration by this Court. C. Appellants failed to demonstrate race was the predominant factor. Appellants failed to present any evidence that would support their Fourteenth Amendment racial gerrymandering claims. As the district court noted, "Plaintiffs may prove that race was the predominant consideration in a variety of ways," including offering circumstantial evidence of a district s shape and demographics. (Appellants App. A, p. 6a.) For example, Appellants could have shown that the redistricting plans were "so extremely irregular on [their] face that [the plans] rationally can be viewed only as an effort to segregate the races for purposes of voting." Vera, 517 U.S. at 958 (internal quotations and citations omitted). Alternatively, they could have offered direct evidence of a discriminatory legislative purpose. Miller, 515 U.S. at Instead, Appellants did neither. The record is devoid of any evidence demonstrating race predominated in the 12 Appellants claim that because this is a "mixedmotive" case, a different standard should apply. (J.S. 24.) Even if this is a "mixed motive" case, the Miller~Shaw framework still applies. See Vera, 517 U.S. at

39 27 redistricting process. 13 At most, Appellants evidence shows that race was merely a factor considered by the General Assembly during the redistricting process, which, in a Fourteenth Amendment racial gerrymandering claim, is insufficient to shift the burden to the state to defend the plan. At trial, Appellants relied primarily on the testimony of Representative Sellers and Dr. McDonald s review of the geographic and demographic data of the plan to argue that race was the predominant factor. The record reflects, however, that race was but one factor considered along with many other traditional redistricting principles. The district court was unconvinced by Appellants evidence and concluded that Appellants had failed to show that the legislature subordinated traditional race-neutral redistricting principles to race; or that the redrawn lines were so bizarre that the only explanation for their boundaries are racial considerations; or that there was a legislative purpose to consider race as the predominant factor. 1. Representative Sellers and other legislators. The district court held Appellants evidence failed to prove that race was the predominant factor 13 Appellants presented no objection to the court s abbreviated trial scheduling order, representing to the court, "[w]e re not complaining. We think it s necessary." (Resp ts App. p. 122a.) Appellants were also "more than happy" to conduct a trial largely consisting of affidavit testimony. (Id. at 123~124.)

40 28 considered by the General Assembly in drawing the district lines. Appellants relied on affidavits of several legislators and oral testimony from Representative Sellers to show that the legislature had an intentional discriminatory purpose. The affidavits did "not offer any convincing proof that a focus on race by the legislature was the predominant reason for the elevated BVAP. (Appellants App. A, p. 15a.) Representative Sellers initially insisted race was the "predominant", if not "the only factor" considered by the General Assembly in the redistricting process. (Id. at 16a.) Representative Sellers testimonywas dismantled on crossexamination when he was unable to identify any district that was not contiguous or compact, and conceded that all communities of interest were addressed and difficult but reasonable efforts were made to ensure that incumbent legislators remained in their current districts. (Resp ts App. pp. 36a-39a, 43a, 45a-47a.) Representative Sellers further testified that the districting plans complied with the United States Constitution, the VRA, and population criteria (Id. at 28a, 30a, 31a.) In fact, Representative Sellers commended the election law subcommittee for its efforts to take public input into account and for "making sure that the process was sound." (Id. at 50a.) 2. Dr. McDonald. Dr. McDonald also testified race was a predominant factor in the drawing of the district lines, but admitted he failed to consider a great deal

41 29 of the relevant information available to him. In developing his analysis as to whether districts "were packed," Dr. McDonald failed to consider the complete House record of the redistricting process, (Resp ts App. p. 4a), the audio tapes of the election law subcommittee, newspaper articles, (Id. at 5a-6a), the pre-existing precinct lines, or the General Assembly s redistricting guidelines and criteria adopted and followed by the House in developing its plan. (Id. at 7a-12a.) 14 Dr. McDonald did not present an alternative plan that would maintain core constituencies better than the House plan. (Id. at 14a.) He testified the plan passed by the House keeps more counties whole than would the Appellants plan. (Id. at 16a-17a.) He conceded the House plan made communities of interest whole without considering race as a factor. (Id. at 13a.) Appellants relied on Dr. McDonald to attempt to prove that the district shapes in the redistricting plan were so irregular that race was the only possible explanation. He only performed a visual determination of compactness and did not consider any other pre-existing political subdivision boundaries. (Id. at 3a, 8a-11a.) 14 Those race-neutral guidelines, set forth in Colleton County Council v. McConnell, 201 F. Supp. 2d 618 (D.S.C. 2002), include (1) recognizing communities of interest; (2) preserving the cores of existing districts; (3) respecting political boundaries; and (4) keeping incumbents residences in districts with their core constituencies. Id. at 647.

42 30 The court s estimation of the evidence. After considering this evidence, the court concluded that Appellants "failed to prove any legislative purpose that indicates race was the predominant factor." (Appellants App. A, p. 15a.) The court recognized that Representative Sellers testimony failed to go beyond general beliefs and did not contain a specific explanation as to how and when the legislature as a whole subordinated raceneutral criteria to race in approving the redistricting plan. (Id. at 17a-18a.) Accordingly, the court found that Representative Sellers testimony was "insufficient to show that race predominated in creating the House and Congressional plans." (Id. at 17a.) Furthermore, the district court found that Dr. McDonald, who considered only demographics and geography data, "was unable to provide the Court a reliable opinion that the General Assembly subordinated traditional race-neutral principles to race." (Id. at 14a.) The court recognized that the South Carolina House of Representatives proposed, debated, and adopted guidelines and criteria to be used in redistricting the Congressional and House districts. (Id. at 15a-18a.) The House considered not only the Redistricting Plans compliance with the United States Constitution and the VRA, but also achieving equal population for the districts, contiguity, compactness, maintenance of communities of interest, and incumbency protection.

43 31 After considering this evidence, the district court concluded that Appellants "failed to prove any legislative purpose that indicates race was the predominant factor." (Id. at 15a.) The court also determined that Appellants "failed to prove intentional discrimination [or] demonstrated that the General Assembly intended to pack African- American voters into districts to prevent the creation of crossover districts. (Id. at 23a.) Instead, the district court found that Respondents race-neutral explanations of county lines, existing district boundaries, and census bloc lines were more convincing evidence. (Id. at 15a-18a.) Because Appellants never presented sufficient evidence to demonstrate that race predominated over race-neutral redistricting criteria, they failed to meet their burden of proof. 4. Summary. The district court analyzed each specific item of evidence offered by the Appellants and explained its reasons for finding that the evidence presented was insufficient to meet the burden of proof. Just as they did in the trial, Appellants again fail in their Jurisdictional Statement to explain how the evidence they offered is sufficient to prove that the General Assembly improperly considered race in drawing and adopting the redistricting plan.

44 32 II. Plaintiffs Lack Standing Under United States v. Hays. Appellants entire standing argument hinges upon a mistaken reading of this Court s racial gerrymandering decisions. This Court has held that "a district created solely to effectuate the perceived common interests of one racial group" renders it more likely that officials elected from that district will "believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole. 15 Shaw, 509 U.S. at 643. Thus, a racially gerrymandered district may cause resident voters to "suffer... special representational harms" as a result of the wrongful racial classification. United States v. Hays, 515 U.S. 737, (1995). In contrast, voters who do not reside in a racially gerrymandered district do not individually suffer these same "representational harms" and may not raise a racial gerrymandering claim absent specific evidence showing that they have "personally been subjected to a racial classification. 1~ Id. at 745. This is true even if the voter resides in a district directly adjacent to the allegedly gerrymandered district. Id. at 746; see also Sinkfield v. Kelley, 531 U.S. 28, (2000) (per curiam) (rejecting argument that allegedly "unconstitutional use of race in drawing the 15 The determination of the district court panel with respect to standing concerned only Appellants gerrymandering claims, not their vote dilution claims. racial 16 A racial gerrymandering challenge brought against a district in which the voter does not reside is "only a generalized grievance against government conduct of which he or she does not approve." Hays, 515 U.S. at 745.