Bethune-Hill v. Va. State Bd. of Elections (326 F. Supp. 3d 128, 2018)

BARBARA MILANO KEENAN, Circuit Judge:

The plaintiffs, 12 Virginia registered voters, filed this civil action in 2014, alleging racial gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment. Dkt. No. 1; Am. Compl. ¶¶ 1, 7-18. They contend that the Virginia General Assembly (the legislature) predominantly relied on race in constructing 12 majority-black Virginia House of Delegates districts during the 2011 redistricting cycle. Am. Compl. ¶¶ 1-2. According to the plaintiffs, the legislature required each of these districts to achieve a minimum 55% black voting age population (BVAP), which BVAP requirement was not necessary for black voters to elect their preferred candidates under the mandate of the Voting Rights Act of 1965 (VRA), 52 U.S.C. § 10101 through § 10702. Am. Compl. ¶¶ 2-3; 1st Trial Tr. at 5.

After holding a bench trial in 2015, this Court issued a divided opinion upholding the redistricting plan. See Bethune-Hill v. Va. State Bd. of Elections , 141 F.Supp.3d 505 (E.D. Va. 2015). The United States Supreme Court affirmed this Court's decision regarding one district, but remanded for reconsideration of the question whether race was used as the predominant factor in drawing the 11 remaining districts. See Bethune-Hill v. Va. State Bd. of Elections , --- U.S. ----, 137 S.Ct. 788, 197 L.Ed.2d 85 (2017). After a second trial, and upon our consideration of the evidence presented at both trials, we hold that the plaintiffs have shown through telling direct and circumstantial evidence that race predominated over traditional districting factors in the construction of the 11 remaining challenged districts. We further hold that the intervenors have not satisfied their burden to show that the legislature's use of race was narrowly tailored to achieve the compelling state interest of compliance with Section 5 of the VRA, 52 U.S.C. § 10304.

I.

We begin with an overview of the procedural history of this case. Following the 2010 decennial census, the legislature redrew the 100 Virginia House of Delegates districts to take effect beginning with the 2011 election cycle. Bethune-Hill , 137 S.Ct. at 795 ; see Pl. Ex. 65. Delegate Steven Christopher Jones was the chief patron of House Bill 5005, which set forth the re-drawn districts (the 2011 plan, or the 2011 map). Pl. Ex. 48 at 10-12; 1st Trial Tr. at 316, 376-77, 395.

Jones was the chair of the House Committee on Privileges and Elections, and coordinated public meetings throughout the state regarding the 2011 redistricting process. Pl. Ex. 48 at 3, 6; 2nd Trial Tr. at 112. In this role, Jones also was the primary architect of the 2011 plan. 1st Trial Tr. at 397. To construct the map, Jones and others used "Maptitude" software to move census blocks and voting tabulation districts (VTDs) in and out of the proposed House of Delegates districts. 1st Trial Tr. at 274; 2nd Trial Tr. at 36, 61. Maptitude reflected the demographic changes in each district resulting from the alterations of proposed boundary lines. 1st Trial Tr. at 40. The software also was available for the use of other legislators on computers located in the legislature's Division of Legislative Services office. 1st Trial Tr. at 33, 40, 420, 444.

To achieve population equality among the districts as required by the United States Constitution, the legislature determined that each House of Delegates district was required to have 80,000 residents, with a maximum population deviation of plus or minus one percent. Pl. Ex. 16 at 1; 1st Trial Tr. at 29, 70; see also Bethune-Hill , 137 S.Ct. at 795. Both the 2001 and 2011 districting plans included 12 districts in which black residents constituted a majority of the districts' voting-age population (the majority-minority districts, or the challenged districts). Bethune-Hill , 137 S.Ct. at 795. These districts were located in four distinct areas of the state: the greater Richmond/Tri-City region, the Southside area located along the North Carolina border, North Hampton Roads (the peninsula), including the cities of Newport News and Hampton, and, finally, South Hampton Roads, including the cities of Norfolk, Chesapeake, and surrounding areas. Pl. Ex. 50 at 69; Pl. Ex. 69 at 9, 41; DI Ex. 94; 1st Trial Tr. at 319. At the time of the 2010 census, the BVAP levels in the 12 majority-minority districts ranged from between 46.3% and 62.7%. Id. ; Pl. Ex. 50 at 72. Because most of the 12 districts were underpopulated according to the 80,000-person population requirement, "any new plan required moving significant numbers of new voters into these districts in order to comply with the principle of one person, one vote." Id.

Under Section 5 of the VRA, 52 U.S.C. § 10304, then-applicable to Virginia's redistricting efforts, any new plan was barred from "diminish[ing] the number of districts [compared to the prior plan] in which minority groups can 'elect their preferred candidates of choice' (often called 'ability-to-elect' districts)." Bethune-Hill , 137 S.Ct. at 795 (quoting Harris v. Ariz. Indep. Redistricting Comm'n , --- U.S. ----, 136 S.Ct. 1301, 1307, 194 L.Ed.2d 497 (2016) ). Section 5 thus mandated that covered states "maintain a minority's ability to elect a preferred candidate of choice." Ala. Legislative Black Caucus v. Alabama , --- U.S. ----, 135 S.Ct. 1257, 1272, 191 L.Ed.2d 314 (2015).

To comply with this "non-retrogression" requirement, the legislature determined that all 12 majority-minority districts were required to have a minimum 55% BVAP in the 2011 plan. Bethune-Hill , 137 S.Ct. at 795. Imposition of this racial threshold necessitated an increase in the BVAP in three districts, which had BVAP levels below 55% at the time of the 2010 census. Pl. Ex. 50 at 72. The selection of the 55% BVAP figure was based on Jones' assessment of the needs of District 75, a rural majority-minority district located along the state's southern border. Id. at 796 ; DI Ex. 94 at 7. The legislature also applied the 55% BVAP requirement to the remaining 11 majority-minority districts. Id.

In April 2011, the legislature passed House Bill 5005 with broad bipartisan support, as well as support from a majority of the black members of the House of Delegates (the black caucus). Id. After Governor Robert McDonnell signed the bill into law, the United States Department of Justice "precleared" the plan in accordance with Section 5 of the VRA. Id. ; Pl. Ex. 48 at 10-12; see infra note 12 (discussion of Section 5 preclearance).

In 2014, the plaintiffs, registered voters in the 12 majority-minority districts, filed the present civil action against the Virginia State Board of Elections and some of its officials (the state defendants). See Dkt. No. 1; Am. Compl. ¶¶ 7-22. The plaintiffs challenged their districts of residence as racial gerrymanders in violation of the Equal Protection Clause. Id. ; Am. Compl. ¶¶ 1-2. They sought declaratory and injunctive relief prohibiting the state from holding further elections based on the unconstitutional districts. Am. Compl. at 17. The initial three-judge district court, as well as the present three-judge panel, were constituted pursuant to 28 U.S.C. § 2284(a). Dkt. No. 11; see also Am. Compl. ¶ 24.

Shortly after the complaint was filed, the Virginia House of Delegates and its speaker, Delegate William J. Howell (the intervenors), who were the "parties that drew and enacted the redistricting plan at issue," filed a motion to intervene. Dkt. No. 13 at 2. We granted the motion. Dkt. No. 26. Since that time, the intervenors have borne the primary responsibility of defending the 2011 plan, with the state defendants joining the intervenors' defense but declining to present an independent substantive defense. 1st Trial Tr. at 12-13, 830; 2nd Trial Tr. at 23-24. For ease of reference, we will refer to the state defendants and the intervenors collectively as "the intervenors."

Following a bench trial in July 2015 (the first trial), a majority of this Court found that race was not the predominant factor used in the construction of 11 of the 12 challenged districts. Bethune-Hill , 141 F.Supp.3d at 505, 510-11. In reaching this conclusion, the majority found that the plaintiffs had not shown that the legislature's use of race was in "actual conflict" with traditional, race-neutral districting criteria. Id. at 524, 553-55, 559-71 (citation omitted). With respect to District 75, however, the Court found that race had predominated, but that the legislature's use of race was narrowly tailored to achieve the compelling state interest of compliance with the VRA. Id. at 511. Judge Keenan filed a separate dissenting opinion, concluding that by applying a mechanical 55% BVAP quota across the board to all 12 challenged districts, race predominated over other districting criteria as a matter of law. Id. at 572 (Keenan, J., dissenting).

The Supreme Court affirmed this Court's holding that District 75 satisfied strict scrutiny, concluding that Jones had engaged in an adequate "functional analysis" of the BVAP level necessary to avoid retrogression in that district. Bethune-Hill , 137 S.Ct. at 801. However, the Court disagreed with the majority's predominance analysis in the other 11 districts. The Court held that the plaintiffs were not required to show "actual conflict" between race and traditional districting criteria to prove predominance. Id. at 797-98. The Court further explained that "there may be cases where challengers will be able to establish racial predominance in the absence of an actual conflict by presenting direct evidence of the legislative purpose and intent or other compelling circumstantial evidence," considering the district as a whole. Id. at 799-800. Accordingly, the Supreme Court remanded the case to this Court for reconsideration of the question of predominance under the proper standard. Id. at 800.

On remand, we instructed the parties to file briefs regarding the impact of the Supreme Court's decision on this case, the continued viability of our prior factual findings, and the need for additional evidence to be presented. Dkt. No. 136. After considering the parties' positions, we held a four-day bench trial in October 2017 (the second trial), in which the plaintiffs and the intervenors presented substantial new evidence. Dkt. No. 224. Most relevant here, the plaintiffs offered the testimony of two new expert witnesses, and the intervenors presented a redistricting consultant who testified that he had played a significant role in drawing the 2011 plan. See infra discussions of testimony of Jonathan Rodden, Maxwell Palmer, and John Morgan. The parties also submitted extensive briefing following the second trial. Dkt. No. 230-33.

We now proceed to discuss the relevant legal principles, to consider the evidence presented at both trials, to make relevant credibility determinations, and to apply the Supreme Court's instructions to these factual findings.

II.

Under the Equal Protection Clause, a legislature may not "separate its citizens into different voting districts on the basis of race," without satisfying the rigorous requirements of strict scrutiny. Miller v. Johnson , 515 U.S. 900, 911, 916, 920, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995). The harm from such racial sorting is apparent. By assigning voters to districts based on race, a state "engages in the offensive and demeaning assumption that voters of a particular race, because of their race, think alike, share the same political interests, and will prefer the same candidates at the polls." Id. at 911-12, 115 S.Ct. 2475 (internal quotation marks omitted) (quoting Shaw v. Reno , 509 U.S. 630, 647, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) ); see also Bethune-Hill , 137 S.Ct. at 797 (explaining that harm from racial sorting "include[s] being personally subjected to a racial classification as well as being represented by a legislator who believes his primary obligation is to represent only the members of a particular racial group" (citation omitted) ).

Nevertheless, legislatures often act with a "consciousness of race" in their redistricting decisions, and can do so without subjecting their actions to strict scrutiny. Bush v. Vera , 517 U.S. 952, 958, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (principal opinion of O'Connor, J.). In assessing a claim of racial gerrymandering, courts "must be sensitive to the complex interplay of forces that enter a legislature's redistricting calculus." Abbott v. Perez , No. 17-586, slip op. at 21, --- U.S. ----, ----, 138 S.Ct. 2305, 201 L.Ed.2d 714, 2018 WL 3096311 (U.S. June 25, 2018) (quoting Miller , 515 U.S. at 915-16, 115 S.Ct. 2475 ). Accordingly, a plaintiff alleging a racial gerrymandering claim bears the burden "to show, 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." Bethune-Hill , 137 S.Ct. at 797 (quoting Miller , 515 U.S. at 916, 115 S.Ct. 2475 ).

Race is the "predominant factor" in a redistricting decision when the legislature "subordinate[s] traditional race-neutral districting principles to racial considerations." Alabama , 135 S.Ct. at 1270 (emphasis and alterations omitted). Although the application of a mandatory BVAP requirement for a district does not alone compel the conclusion that race predominated, see generally Bethune-Hill , 137 S.Ct. 788, such a requirement is evidence of the manner in which the legislature used race in drawing the district's boundaries, see id. at 800 ; Alabama , 135 S.Ct. at 1267.

For example, if a legislature made line-drawing decisions for the predominant purpose of complying with such a BVAP requirement, and the evidence shows that these race-based decisions dwarfed any independent consideration of traditional districting criteria, a court could conclude that the legislature "relied on race in substantial disregard of customary and traditional districting practices." Miller , 515 U.S. at 928, 115 S.Ct. 2475 (O'Connor, J., concurring). Under such circumstances, a court could conclude that race was the predominant factor in the construction of the district, because "[r]ace was the criterion that, in the State's view, could not be compromised," and the state applied traditional districting criteria "only after the race-based decision had been made." Shaw v. Hunt , 517 U.S. 899, 907, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) ( Shaw II ); see also Alabama , 135 S.Ct. at 1267 (explaining that when state "expressly adopted and applied a policy of prioritizing mechanical racial targets above all other districting criteria," this use of a racial target "provides evidence that race motivated the drawing of particular lines").

As set forth by the Supreme Court, traditional districting criteria include "compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests, incumbency protection, and political affiliation." Alabama , 135 S.Ct. at 1270 (citations and internal quotation marks omitted). Notably, however, the objective of achieving population equality is not a traditional districting factor, as the requirement of equal population is a "background rule against which redistricting takes place." Id. at 1270-71. Instead, "the 'predominance' question concerns which voters the legislature decides to choose, and specifically whether the legislature predominately uses race as opposed to other, 'traditional' factors when" moving voters for the purpose of equalizing population in a given district. Id. at 1271.

Contiguity, a description of geographical connectedness within a district, and compactness, a measure of the regularity of the shape of a district, are traditional districting criteria that also are required by the Virginia Constitution. Va. Const. art. 2, § 6 ; see Shaw II , 517 U.S. at 905-06, 116 S.Ct. 1894 (explaining that shape of a district that is "highly irregular and geographically non-compact by any objective standard" is evidence of racial predominance); Page v. Va. State Bd. of Elections , No. 3:13cv678, 2015 WL 3604029, at *10-11, *15 (E.D. Va. June 5, 2015) ;

Wilkins v. West , 264 Va. 447, 571 S.E.2d 100, 109-10 (2002). Voters residing in a geographically compact district, or in a common political subdivision, are more likely than voters who are more geographically dispersed to share similar interests that can be represented by a common legislator. Similarly, a district that is drawn with some consideration of "communities of interest" links voters who share a "common thread of relevant interests," including political, social, or economic interests. Miller , 515 U.S. at 919-20, 115 S.Ct. 2475 ; see also Bush , 517 U.S. at 964, 116 S.Ct. 1941 (principal opinion of O'Connor, J.) (communities of interest may share media outlets, public transportation, and educational and religious institutions).

Because the Equal Protection Clause "prohibits unjustified racial classifications" and not "misshapen districts," the Supreme Court has held that "a conflict or inconsistency" between a districting plan and traditional districting criteria is not required to establish predominance. Bethune-Hill , 137 S.Ct. at 798-99. Thus, although such a conflict or inconsistency may constitute "persuasive circumstantial evidence" of racial predominance, traditional districting criteria still may be subordinated to race without such "actual conflict." Id. at 799. Under a contrary rule, "a State could construct a plethora of potential maps that look consistent with traditional, race-neutral principles," while still using "race for its own sake [as] the overriding reason" for choosing the boundaries of the districts. Id.

For similar reasons, if a legislature uses race as a proxy for a legitimate districting criterion, such as partisan advantage or protection of incumbents, this consideration of race likewise is subject to strict scrutiny. Bush , 517 U.S. at 968-73, 116 S.Ct. 1941 (principal opinion of O'Connor, J.). Using race in the service of a legitimate goal does not alter the underlying fact that the legislature has selected voters for inclusion in a district based on race. See id. at 972, 116 S.Ct. 1941 ("[T]he fact that racial data were used in complex ways, and for multiple objectives, does not mean that race did not predominate over other considerations."). Accordingly, when a state asserts that it drew district lines on the basis of partisanship rather than race, we must conduct "a sensitive inquiry into all circumstantial and direct evidence of intent" to determine whether the plaintiffs have "disentangle[d] race from politics and prove[n] that the former drove a district's lines." Cooper v. Harris , --- U.S. ----, 137 S.Ct. 1455, 1473 & n.7, 197 L.Ed.2d 837 (2017) (citation and internal quotation marks omitted).

Our predominance inquiry requires a "holistic analysis" that involves consideration of the "districtwide context" to determine "the legislature's predominant motive for the design of the district as a whole ." Bethune-Hill , 137 S.Ct. at 800 (emphasis added). In conducting this inquiry, we must determine "the actual considerations that provided the essential basis for the lines drawn," and will disregard "post hoc justifications the legislature in theory could have used but in reality did not." Id. at 799 (emphasis omitted). Our consideration of the legislature's true motivations in drawing the districts is highly fact-specific, and involves numerous credibility findings based on our assessment of the testimony presented at trial. See Cooper , 137 S.Ct. at 1473-78.

If a plaintiff makes a sufficient showing of racial predominance, the burden shifts to the state to satisfy the requirements of strict scrutiny, namely, that the use of race was narrowly tailored to achieve a compelling state interest. Bethune-Hill , 137 S.Ct. at 800-01 (citing Miller , 515 U.S. at 920, 115 S.Ct. 2475 ). In the present case, the intervenors have asserted that compliance with Section 5 of the VRA, 52 U.S.C. § 10304, is a compelling state interest justifying the predominant use of race in the 2011 plan. See DI Post-Trial Br. at 29-32. Section 5 "prohibits a covered jurisdiction from adopting any change that 'has the purpose of or will have the effect of diminishing the ability of [the minority group] to elect their preferred candidates of choice.' " Alabama , 135 S.Ct. at 1272 (quoting 52 U.S.C. § 10304(b) ). Like the Supreme Court, upon a finding of racial predominance, we will assume without deciding that compliance with Section 5 is a compelling state interest, and will focus our analysis on the question whether the legislature's reliance on race was narrowly tailored to achieving that interest. See, e.g. , Bethune-Hill , 137 S.Ct. at 801 ; Alabama , 135 S.Ct. at 1272-74.

To satisfy the narrow tailoring prong of strict scrutiny, a state must show that it had a "strong basis in evidence" supporting its race-based decision. Alabama , 135 S.Ct. at 1274 (citation omitted). Under this standard, a state need not make a precisely accurate determination of the BVAP percentage required to satisfy the mandate of Section 5 in a particular district. Id. at 1273. Instead, the state must show that it had "good reasons to believe" that its use of race was required under Section 5, even if a court later determines that the state's action was not in fact necessary to comply with the statute. Id. at 1274 (emphasis and citation omitted).

Notably, Section 5 "does not require a covered jurisdiction to maintain a particular numerical minority percentage" in a district. Id. at 1272. Instead, Section 5 imposes a "non-retrogression" standard, which requires the state "to maintain a minority's ability to elect a preferred candidate of choice." Id. at 1272-73. To achieve this goal, a state should not rely on a "mechanically numerical view as to what counts as forbidden retrogression," but should adopt a "purpose-oriented view" that asks simply whether a redistricting plan maintains a minority group's ability to elect its preferred candidate. Id. at 1273-74.

With these principles in mind, we turn to consider whether the evidence presented at the two trials in this case supports a finding that race was the predominant factor in the construction of the 11 remaining challenged districts. Upon a finding that race predominated, we will consider whether the state had a "strong basis in evidence" for its race-based decisions. Id. at 1274.

III.

In accordance with the Supreme Court's instruction that we employ a "holistic analysis" in determining the legislature's predominant motive, Bethune-Hill , 137 S.Ct. at 800, we begin by reviewing the evidence of racial motive in the plan as a whole, see Alabama , 135 S.Ct. at 1267-68. Although statewide evidence is not dispositive with respect to predominance in any given district, "[s]uch evidence is perfectly relevant" to our evaluation whether the plaintiffs have satisfied their burden of showing "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." Id. at 1267 (quoting Miller , 515 U.S. at 916, 115 S.Ct. 2475 ).

A.

Two factual matters presented in the prior proceedings are relevant to our predominance analysis. First, the intervenors conceded in the first trial that the legislature was required to consider, and did consider, race in its redistricting decisions in order to comply with the VRA. 1st Trial Tr. at 403, 405. Consistent with this admission, the House Committee on Privileges and Elections adopted a resolution (the House resolution) listing several written criteria to guide the redistricting process. See Pl. Ex. 16.

The primary criterion of "population equality" mandated that each district "be as nearly equal to the population of every other district as is practicable," with population deviations in the House districts within plus-or-minus one percent. Pl. Ex. 16 ¶ I. After population equality, the House resolution listed the "Voting Rights Act" as the second criterion, and provided as follows:

Districts shall be drawn in accordance with the laws of the United States and the Commonwealth of Virginia including compliance with protections against the unwarranted retrogression or dilution of racial or ethnic minority voting strength. Nothing in these guidelines shall be construed to require or permit any districting policy or action that is contrary to the United States Constitution or the Voting Rights Act of 1965.

Pl. Ex. 16 ¶ II. The House resolution also enumerated other, less important criteria, including contiguity and compactness, single-member districts, and communities of interest. Pl. Ex. 16 ¶¶ III-VI; see also 1st Trial Tr. at 402-03. The House resolution further emphasized that population equality and compliance with federal and state law, and the VRA in particular, "shall be given priority in the event of conflict among the criteria." Pl. Ex. 16 ¶ VI.

A second factual matter also is now settled, namely, that the legislature employed a 55% BVAP threshold in drawing each of the challenged districts. The fact that there was a 55% BVAP requirement is contrary to the position that the intervenors maintained at the first trial. 1st Trial Tr. at 20, 280-81, 406, 409, 860. In this Court's first opinion, we described the parties' dispute regarding the fixed or aspirational nature of the 55% number, but ultimately found that "the 55% BVAP figure was used in structuring the districts," Bethune-Hill , 141 F.Supp.3d at 519, a conclusion that was affirmed by the Supreme Court, see Bethune-Hill , 137 S.Ct. at 794 ("[T]he boundary lines for the 12 districts at issue were drawn with a goal of ensuring that each district would have a [BVAP] of at least 55%."); see also Dissent Op. at 194 ("It is undisputed that race was considered, and it is established that a 55% BVAP rule was employed."). Upon our review of the record of both trials, showing that the legislature achieved a 55% minimum BVAP in each district by drawing boundaries based on that threshold, we now find as a matter of fact that the legislature employed a mandatory 55% BVAP floor in constructing all 12 challenged districts.

Although the existence of the 55% threshold is not dispositive of the question of predominance, see generally Bethune-Hill , 137 S.Ct. 788, the fixed BVAP requirement nevertheless is evidence of the legislature's motive, see id. at 800 ; Alabama , 135 S.Ct. at 1267 ("That Alabama expressly adopted and applied a policy of prioritizing mechanical racial targets above all other districting criteria (save one-person, one-vote) provides evidence that race motivated the drawing of particular lines in multiple districts in the State."). Moreover, race may predominate in the drawing of a particular legislative district even if that district begins with a BVAP over 55%, or if particular district lines were not necessary to achieve the 55% figure. See, e.g. , Dissent Op. at 196-97, 199-20. We therefore evaluate the evidentiary weight to accord the use of the 55% threshold in the context of the other evidence presented.

B.

We turn to consider the evidence of predominance that the plaintiffs presented at the second trial. The plaintiffs offered the testimony of two experts: Dr. Jonathan Rodden, a professor of political science at Stanford University, and Dr. Maxwell Palmer, an assistant professor of political science at Boston University. Pl. Ex. 69 at 72; Pl. Ex. 71 at 69. We conclude that both experts provided credible testimony based on sound methodology, and we will discuss their testimony in turn.

At trial, Dr. Rodden was accepted as an expert in the field of "geo-spatial data analysis" and its application to redistricting. 2nd Trial Tr. at 159. Dr. Rodden used geo-spatial data to determine whether it was "plausible that the final shape of the districts could have emerged without race being used as the dominant consideration." Pl. Ex. 69 at 2. In particular, Dr. Rodden used census data to determine the geographic distribution of groups of voting-age white residents and voting-age black residents. Pl. Ex. 69 at 8; 2nd Trial Tr. at 163-64. He placed white "dots" representing a designated number of white voting-age residents, and black "dots" representing the same number of black voting-age residents, randomly within each census block. Pl. Ex. 69 at 8; see, e.g. , Pl. Ex. 69 at 10. The resulting "dot density maps" are a visual illustration of the density of white and black voting-age populations in the geographic region depicted on the map. Pl. Ex. 69 at 8; see also, e.g. , Pl. Ex. 69 at 10. Dr. Rodden examined each challenged district individually, as well as in regional groupings, noting that changes made to one district also impacted neighboring districts. 2nd Trial Tr. at 162.

Dr. Rodden concluded that the dot density maps reflected "telltale signs" of "race-based maneuvering." Pl. Ex. 69 at 4. In examining these maps, Dr. Rodden opined that the goals of population equality and a 55% BVAP could not be achieved in the challenged districts without "considerable creativity," and "in many cases ... do[ing] considerable violence to traditional districting principles." Pl. Ex. 69 at 3. Dr. Rodden thus determined that race was the predominant factor used in constructing all 11 challenged districts. 2nd Trial Tr. at 161.

Dr. Rodden explained that, in general, expanding the underpopulated challenged urban districts into the overpopulated white suburbs would have caused the BVAP in the challenged districts to fall below the 55% threshold. Pl. Ex. 69 at 3; see, e.g. , 2nd Trial Tr. at 174. Given this significant underpopulation in many of the challenged districts, and the geographic distribution of white and black residents, the legislature was forced to consider the racial make-up of individual VTDs and, at times, to split VTDs according to the racial composition of particular census blocks. Pl. Ex. 69 at 3-4. Dr. Rodden further noted that boundary lines between districts frequently were small residential roads separating predominantly white and predominantly black neighborhoods. Pl. Ex. 69 at 4. Accordingly, Dr. Rodden concluded that it was "simply not possible to devise a credible post-hoc explanation for these decisions that is not based on race." Pl. Ex. 69 at 4.

The visual depictions of racial sorting in the dot density maps are telling. The regional maps showed that most significant concentrations of black voters were swept into one of the challenged districts. See, e.g. , Pl. Ex. 69 at 12, 42. These maps also indicated that heavily populated black areas often were shared between multiple challenged districts, sometimes splitting municipal boundaries in the process. See Pl. Ex. 69 at 43. As Dr. Rodden observed, "[w]hen respect for county or municipal boundaries would have undermined the ability to reach the racial target, they were ignored." Pl. Ex. 69 at 4.

The dot density maps of individual districts, and "zoomed in" portions of those districts, illustrated the precision with which district boundaries coincided directly with racial residential patterns. See, e.g. , Pl. Ex. 69 at 45, 47. The dot density map of District 80, for instance, showed a narrow "bridge" consisting of two largely white VTDs, which were used to connect geographically distinct clusters of black voters. See Pl. Ex. 69 at 53. And as discussed further below, the maps plainly showed that VTDs in each region were split exactly along racial lines. See, e.g. , Pl. Ex. 69 at 38 (District 63, Hopewell Ward 7), 47 (District 95, Reservoir, Epes, Denbigh, Jenkins), 58 (District 89, Granby); 2nd Trial Tr. at 275. In one such example, the legislature excised from District 89 a single census block of predominantly white voters from the Granby VTD, and allocated those voters to a neighboring non-challenged district. Pl. Ex. 69 at 57-58. These visual depictions led Dr. Rodden to reach the unavoidable conclusion that the challenged districts were designed to capture black voters with precision. See 2nd Trial Tr. at 275.

Dr. Palmer was accepted as an expert in the area of redistricting and data analysis as it pertains to redistricting. 2nd Trial Tr. at 366. Dr. Palmer conducted statistical analyses regarding the populations of the challenged districts to determine whether race predominated in the construction of those districts. See Pl. Ex. 71 at 2. Because respect for political boundaries is an important traditional redistricting principle, Dr. Palmer focused on the manner in which VTDs and political subdivisions were split in the plan. Pl. Ex. 71 at 4 ¶ 13; 2nd Trial Tr. at 370. And as discussed further below, Dr. Palmer also evaluated the reports of other experts who previously testified in the case. 2nd Trial Tr. at 366-67.

Dr. Palmer reached several general conclusions relevant to our racial predominance inquiry. First, he observed that the number of split VTDs increased between the 2001 plan and 2011 plan, and that splitting VTDs in the 2011 plan was more common in the challenged districts than in the non-challenged districts. Pl. Ex. 71 at 5; see also Pl. Ex. 50 at 70; 2nd Trial Tr. at 371.

Second, Dr. Palmer concluded that there is "substantial evidence" that race was the predominant factor in the manner that VTDs, cities, and other places were split between challenged and non-challenged districts. Pl. Ex. 71 at 2 ¶ 3; 2nd Trial Tr. at 369. With only a few exceptions, "these areas were divided such that the portions allocated to challenged districts had a higher BVAP percentage than the portions allocated to non-challenged districts." Pl. Ex. 71 at 2 ¶ 3; see also 2nd Trial Tr. at 381. In particular, in 31 of the 32 VTDs that were split between challenged and non-challenged districts, the areas assigned to the challenged districts had higher BVAPs than the areas assigned to the non-challenged districts. Pl. Ex. 71 at 4 ¶ 14; 2nd Trial Tr. at 374. And, on average, the BVAP of the portions of split VTDs assigned to challenged districts was 24% higher than the portions assigned to non-challenged districts. Pl. Ex. 71 at 4 ¶ 14; 2nd Trial Tr. at 374. This pattern of higher BVAP areas being assigned to challenged districts held true for the ten cities, four towns, one military base, and ten unincorporated places split between challenged and non-challenged districts. Pl. Ex. 71 at 4 ¶ 16, 14 ¶¶ 71-73, Tables 8-15; 2nd Trial Tr. at 392.

Dr. Palmer found that BVAP level was predictive of an area's inclusion in a challenged district, because "[a]s the BVAP of a census block increases, the probability that it is assigned to a challenged district increases." Pl. Ex. 71 at 6-7 ¶ 26; see also 2nd Trial Tr. at 385-86. Dr. Palmer stated that this relationship between BVAP and assignment to a challenged district is statistically significant. Pl. Ex. 71 at 6-7 ¶ 29; 2nd Trial Tr. at 386. Based on this data, Dr. Palmer concluded that VTDs split between challenged and non-challenged districts "were divided by race." Pl. Ex. 71 at 7 ¶ 29. Dr. Palmer similarly concluded that "race predominated over the principle of keeping political subdivisions whole," because "[c]ities, towns, unincorporated places, and even a military base were all divided according to race." Pl. Ex. 71 at 16 ¶ 82.

Splits of particular VTDs provide stark illustrations of these racial divisions. For example, Dr. Rodden explained that District 95, located on the peninsula, was drawn to separate black and white voters with "remarkable precision." Pl. Ex. 69 at 46; see also Pl. Ex. 71 at 35. The map-drawers achieved this division by splitting four VTDs located at the northern end of the district, Jenkins, Denbigh, Epes, and Reservoir, "precisely at the point where black neighborhoods transitioned to white neighborhoods." Pl. Ex. 69 at 47. Epes was split between District 95 and a neighboring non-challenged district along small residential streets, separating multi-family housing with significant black populations on one side of the street from homes occupied by white residents on the other side of the street. Pl. Ex. 69 at 47-48.

Dr. Palmer emphasized that racial disparities in the manner that VTDs were split were "especially strong evidence of racial predominance." Pl. Ex. 71 at 2 ¶ 4; see also 2nd Trial Tr. at 379. Dr. Palmer and Dr. Rodden both explained that election data are not available for individual census blocks that make up the VTDs, and Virginia does not maintain political party registration data in voter files. Pl. Ex. 71 at 2 ¶ 4; 2nd Trial Tr. at 372, 390, 954-58. For these reasons, the Maptitude software is not capable of showing election result data at the census block level. 2nd Trial Tr. at 954-58. Accordingly, the precision and specificity with which VTD splits separated white and black voters cannot be explained by anything other than the intentional consideration of race. See Pl. Ex. 69 at 4 (Rodden: "[I]t is simply not possible to devise a credible post-hoc explanation for these decisions that is not based on race."); Bush , 517 U.S. at 970-71, 116 S.Ct. 1941 (principal opinion of O'Connor, J.) (explaining that, because mapping software applied only racial data at the block level, VTD and street-level splits supported the conclusion that race predominated).

Third, the results of Dr. Palmer's statistical analysis showed that black voters were moved from non-challenged districts into challenged districts at a higher rate than white or Democratic voters. Pl. Ex. 71 at 2 ¶ 5; 2nd Trial Tr. at 395. Conversely, white and Democratic voters were moved out of the challenged districts and into non-challenged districts at a higher rate than black voters. Pl. Ex. 71 at 2 ¶ 5; 2nd Trial Tr. at 395. In all nine challenged districts in which population was shifted to non-challenged districts, the transferred areas had a lower BVAP than the BVAP of the district as a whole. Pl. Ex. 71 at 17 ¶ 85, 61. And, with one exception, all the non-challenged districts that experienced transfers of population into challenged districts moved out areas with a higher BVAP than the non-challenged district as a whole. Pl. Ex. 71 at 16-17 ¶ 84. From these data, Dr. Palmer concluded that "race was the predominant factor in moving populations between districts." Pl. Ex. 71 at 28 ¶ 146.

Using an individual district as an example provides further illustration of these complex racial patterns in population shifts. Under the 2001 plan, District 74 in the Richmond area already had a population within the allowable one percent population deviation, and, at 62.7% BVAP, was well over the 55% BVAP threshold. See Pl. Ex. 50 at 69, 72. Nevertheless, the legislature removed about 16,000 voters out of District 74, and moved about 16,000 different voters in, with the BVAP of the group moved out 17.8% higher than the group moved in. Pl. Ex. 50 at 73, 77. The BVAP of the areas removed from District 74 differed based on whether the receiving district was a challenged district subject to the 55% BVAP requirement. For example, District 74 lost about 2,000 people, with a very low 3.8% BVAP, to non-challenged District 72. Pl. Ex. 71 at 43. In contrast, District 74 lost a group of nearly 8,000 people who were moved into challenged District 71, which needed a significant influx of black voters to reach the 55% threshold. Pl. Ex. 71 at 43. That group of 8,000 people moved from District 74 into District 71 had an 85.5% BVAP. Pl. Ex. 71 at 43. Accordingly, District 74, with its surplus of BVAP, served as a "donor" district to surrounding challenged districts with lower BVAP levels. Pl. Ex. 69 at 15, 31.

And finally, Dr. Palmer engaged in an extensive analysis of the question whether racial composition or political party performance in a VTD was a stronger predictor that a particular VTD would be assigned to a challenged district. 2nd Trial Tr. at 398. As part of his analysis, Dr. Palmer sought to examine the methodologies and conclusions of two experts who testified on the same subject in the first trial, namely, Dr. Jonathan Katz, a professor of social sciences and statistics at the California Institute of Technology, who was presented as a witness by the intervenors, and Dr. Stephen Ansolabehere, who was called by the plaintiffs. Pl. Ex. 50 at 1-2; DI Ex. 16 at 1, 3; see supra note 14 (discussing Dr. Ansolabehere's qualifications). Dr. Katz also testified at the second trial.

Dr. Ansolabehere concluded that race had a larger effect on the assignment of VTDs to challenged districts than did Democratic vote share. Pl. Ex. 50 at 46-47 ¶ 130; Pl. Ex. 71 at 21 ¶ 115. In contrast, Dr. Katz concluded that the effect of both race and party on the assignment of VTDs was nearly equal, and that any effect was not statistically significant. DI Ex. 16 at 20; see also Pl. Ex. 71 at 21-22 ¶ 115.

Dr. Palmer identified two differences between the models used by Dr. Katz and Dr. Ansolabehere. 2nd Trial Tr. at 396. Dr. Palmer concluded that these differences had an important effect on the results. First, Dr. Katz failed to weight each VTD by total population in considering the effect of race and party on likely VTD assignment. Pl. Ex. 71 at 22 ¶ 119; 2nd Trial Tr. at 401. As Dr. Palmer explained, a VTD containing 5,000 people is more significant to the results of the model than a VTD containing only 50 people and, thus, population weights were an important aspect of an accurate analysis. Pl. Ex. 71 at 22 ¶ 119; see also 2nd Trial Tr. at 396-97. After adding the appropriate population weights to Dr. Katz's model, Dr. Palmer explained that the results of the analysis almost mirrored the results reached by Dr. Ansolabehere, namely, that "race, not party, is the predominant factor in the assignment of VTDs to challenged districts." Pl. Ex. 71 at 22-23 ¶ 120; 2nd Trial Tr. at 400.

Second, in the first trial, Dr. Katz criticized Dr. Ansolabehere's analysis for failing to account for the distance between the center of VTDs and challenged districts. See DI Ex. 16 at 20; 1st Trial Tr. at 501, 503-05. In Dr. Katz's view, because VTDs that are located farther away from a challenged district were less likely to be included in that district, proper modeling should include a measure of distance. DI Ex. 16 at 20; see also Pl. Ex. 71 at 21 ¶ 114. Dr. Palmer also accounted for distance in his model, but explained that the particular measure of distance that Dr. Katz used was flawed because it considered the distance from each VTD to all 12 challenged districts. Pl. Ex. 71 at 23 ¶¶ 121-22; 2nd Trial Tr. at 403. As a result, Dr. Katz's analysis produced the illogical conclusion that, for several of the challenged districts, VTDs farther away from those districts were more likely to be assigned to a challenged district than VTDs located closer to such districts. Pl. Ex. 71 at 23 ¶ 121; 2nd Trial Tr. at 404, 406. Accordingly, Dr. Palmer incorporated into his model a different measure of distance, namely, the distance from each VTD to the nearest challenged district. Pl. Ex. 71 at 23 ¶ 122; 2nd Trial Tr. at 407. This approach produced results showing that the farther away a VTD was from the closest challenged district, the less likely it was that this VTD would be assigned to a challenged district. Pl. Ex. 71 at 23 ¶ 123; 2nd Trial Tr. at 408.

Dr. Palmer ultimately concluded that Dr. Katz's results differed from Dr. Ansolabehere's "due to errors in Dr. Katz's model." Pl. Ex. 71 at 24 ¶ 124. In light of these conclusions, including the illogical results from Dr. Katz's distance measurement, we accept as more credible Dr. Palmer's approach and the results he reached regarding race-versus-party.

Like Dr. Ansolabehere, Dr. Palmer concluded that "the effect of race is much larger than that of party in the assignment of VTDs to challenged districts," and that, therefore, race predominated over party in the assignment of VTDs to those challenged districts. Pl. Ex. 50 at 45 ¶¶ 127-29; Pl. Ex. 71 at 24 ¶¶ 123, 125; see also 2nd Trial Tr. at 369, 408. Moreover, "[w]hile the effect of race is large and statistically significant, there is no substantive effect of Democratic vote share on the assignment of a VTD to a challenged district." Pl. Ex. 71 at 24 ¶ 123; see also Pl. Ex. 71 at 63; 2nd Trial Tr. at 408. Based on Dr. Palmer's analyses, we conclude that the BVAP of a VTD was a more accurate predictor of whether that VTD would be included in a challenged district than the Democratic performance of the VTD.

C.

In contrast to the geo-spatial and statistical evidence presented by Dr. Rodden and Dr. Palmer, the intervenors again called Jones as a witness, and also offered testimony by demographer John Morgan. 2nd Trial Tr. at 466-67, 586-87. Morgan, who had nationwide redistricting experience in two prior redistricting cycles, was hired by the Republican House majority to assist Jones with the 2011 redistricting process. 2nd Trial Tr. at 588, 593-94. Morgan testified during the second trial that he played a substantial role in constructing the 2011 plan, which role included his use of the Maptitude software to draw district lines. 2nd Trial Tr. at 593. Morgan testified in considerable detail about his reasons for drawing dozens of lines covering all 11 challenged districts, including purportedly race-neutral explanations for several boundaries that appeared facially suspicious. Despite Morgan's alleged centrality to the 2011 redistricting process, the intervenors neglected to call Morgan to testify at the first trial. The intervenors' belated reliance on Morgan's testimony strongly suggests an attempt at post hoc rationalization. For this and the following reasons, we decline to credit Morgan's testimony.

Morgan claimed that he, rather than Jones, decided to split VTDs at the end of the map-drawing process primarily to equalize population between adjoining districts. 2nd Trial Tr. at 613, 623, 730; see also 2nd Trial Tr. at 473-74, 504-07. Morgan testified that he "really didn't take race into account in splitting the VTDs" in the challenged districts. 2nd Trial Tr. at 714-15.

We find that this explanation was not credible. As an initial matter, Dr. Palmer emphasized that to equalize population, typically only one VTD needed to be split between a pair of districts. 2nd Trial Tr. at 381. Yet several of the challenged districts had multiple VTDs that were split with the same non-challenged district. Pl. Ex. 71 at 52 (three VTD splits between Districts 63 and 62, and two splits between Districts 63 and 64), 53 (three VTD splits between Districts 74 and 72), 54 (two VTD splits between Districts 89 and 79; 77 and 76; and 90 and 85), 55 (five VTD splits between Districts 95 and 94).

And notably, as discussed above, VTDs were split with exacting precision separating predominantly black and white residential areas, sometimes dividing a VTD along the middle of a street. See Pl. Ex. 69 at 38-39 & Figure 12, 47-48; 2nd Trial Tr. at 494. In our view, Morgan's contention, that the precision with which these splits divided white and black areas was mere happenstance, simply is not credible. 2nd Trial Tr. at 679, 748-50; see also 2nd Trial Tr. at 379 (Palmer: "If we're splitting VTDs to equalize population, we shouldn't expect to see the same consistent pattern of division by race across all of them.").

Similarly, Morgan asserted that he split certain VTDs at the census block level in District 95 to increase Republican voting strength in a neighboring, non-challenged district. DI Ex. 94 at 14; 2nd Trial Tr. at 675-80. This contention conflicted with the testimony of Dr. Rodden and Dr. Palmer, as well as with the testimony of the intervenors' own expert, Dr. Thomas Hofeller, who uniformly stated that election results and partisan affiliation data were not available at the census block level. Pl. Ex. 71 at 2 ¶ 4; 2nd Trial Tr. at 372, 390, 942-44, 954-58. Indeed, Morgan conceded that he could only estimate political performance at the census block level by applying election results from the VTD as a whole equally to each census block. 2nd Trial Tr. at 622. This "partisan" approach based on overall VTD performance, however, would not result in VTDs being split precisely to separate predominantly black and white neighborhoods. Accordingly, the only conclusion to draw from Morgan's testimony is that, insofar as he sought to obtain partisan political advantage by splitting VTDs in particular ways, he did so by relying on race as a proxy for political preference. This assumption that members of a particular racial group vote a certain way is antithetical to the principles underlying the Equal Protection Clause. Using race as a proxy for political performance constitutes the use of race , not the use of politics , for purposes of our predominance analysis. Bush , 517 U.S. at 968, 116 S.Ct. 1941 (principal opinion of O'Connor, J.) ("[T]o the extent that race is used as a proxy for political characteristics, a racial stereotype requiring strict scrutiny is in operation."). For these reasons, we conclude that Morgan did not present credible testimony, and we decline to consider it in our predominance analysis.

And finally, we observe that at the second trial, Jones had a murky recollection regarding several important topics on which he previously had testified, despite having had access to the record of his testimony in the first trial for review. See, e.g. , 2nd Trial Tr. at 493-94. Additionally, the testimony of multiple, credible witnesses at the second trial directly undermined much of Jones' prior key testimony. For example, Jones testified repeatedly at the first trial that he consulted most members of the House when drawing the 2011 plan, and relied heavily on input from incumbent members of the black caucus who represented the challenged districts. 1st Trial Tr. at 291-93, 324, 330, 381.

Jones stated at the first trial that he received "extensive input" on the plan from Delegate Algie Howell, who represented District 90. 1st Trial Tr. at 338-39, 343; Parties' Stipulations ¶ 17, Dkt. No. 208. At the second trial, however, Howell denied that he gave significant input into the drawing of his or any district. According to Howell, he had a single, brief conversation with Jones after the plan was drawn. 2nd Trial Tr. at 82-83. Similarly, although Jones purported to rely on "significant input" from incumbent Delegate Matthew James in the construction of District 80, 1st Trial Tr. at 347-49, James testified that he offered no input whatsoever to Jones regarding the configuration of District 80. 2nd Trial Tr. at 71-73. In the face of these denials, Jones' testimony at the second trial was far more equivocal than the first. When asked specifically about James' role in drawing District 80, Jones responded that he could not "answer [the question] directly," but that it was his "understanding" that James had given input. 2nd Trial Tr. at 499.

We recognize that Jones offered voluminous testimony at the first trial explaining many of his line-drawing decisions. We also do not doubt that Jones considered some traditional districting factors in constructing the 2011 plan. And we do not disagree with the dissent's view that because memories may fade with time, we cannot expect witnesses' recollections to remain perfectly clear six years after the events in question. See Dissent Op. at 182. However, we do not discredit Jones' testimony based solely on his faded memory. The first trial occurred more than four years after the redistricting occurred, yet Jones had a remarkably clear recollection of countless, specific line-drawing decisions. But when faced at the second trial with new witnesses challenging material aspects of his previous testimony, and having had access to the transcript of his testimony at the first trial, Jones was unable to produce convincing explanations for the discrepancies. Thus, in light of Jones' very poor memory at the second trial, as well as his inability to account for material inconsistencies in his testimony, we give little weight to Jones' testimony regarding the reasons underlying the many changes made to district boundary lines.

After considering this statewide evidence, we find that the overall racial disparities in population movement, and the splits of VTDs and geographies along racial lines, are strong evidence of racial predominance in the challenged districts. These disparities and shifts did not result from the application of traditional redistricting principles, but rather from the predominant use of race. Additionally, Dr. Palmer's conclusion that race predominated over party in predicting the likelihood that a VTD would be assigned to a challenged district further supports a finding of racial predominance. As instructed by the Supreme Court, our task now is to examine holistically the legislature's use of race in drawing each individual challenged district.

IV.

Mindful of the statewide evidence of race-based decisionmaking identified by Drs. Rodden and Palmer, we turn to examine the legislature's use of race in the construction of each of the 11 challenged districts. Because a change to the boundaries of any one district caused a ripple effect on nearby districts, we will consider the challenged districts in three regional groupings: the Richmond/Tri-City area, North Hampton Roads (the peninsula), and South Hampton Roads/Norfolk.

A.

We begin with the Richmond/Tri-City region, which includes the greater Richmond metropolitan area, as well as the cities of Petersburg, Colonial Heights, and Hopewell. Pl. Ex. 69 at 9. Five challenged districts were located in the Richmond/Tri-City region in both the 2001 plan and the 2011 plan, namely, Districts 63, 69, 70, 71, and 74. Pl. Ex. 69 at 9. Since the 2001 redistricting cycle, the black population in Richmond had increasingly spread from the city limits into the surrounding suburbs. Pl. Ex. 69 at 13. The largely urban districts under the 2001 plan, Districts 69 and 71, had lost population, while both challenged and non-challenged suburban districts either were at the target population level, or were overpopulated. Pl. Ex. 50 at 72; Pl. Ex. 69 at 13. Accordingly, to achieve a 55% BVAP in all five challenged districts, the legislature made numerous decisions motivated by race, including using Districts 70 and 74, which had a surplus of BVAP and adequate population, as "donors" of BVAP to other challenged districts. See infra pp. 156-58, 160-62 (discussions of Districts 70 and 74); see also Pl. Ex. 50 at 72.

At the end of the 2011 redistricting process, every majority-black VTD in the Richmond/Tri-City region was either wholly or partially within a challenged district. Pl. Ex. 69 at 41. And in the final 2011 plan, the Richmond City portions of Districts 69, 70, 71 and 74 had a combined BVAP of 56.2%, whereas the Richmond City areas in non-challenged District 68 had a 6.8% BVAP. Pl. Ex. 71 at 15 ¶ 78, 58.

For the reasons discussed below, we conclude that race was the predominant factor in the legislature's construction of Districts 63, 69, 70, 71, and 74.

i.

We begin with District 71. Overwhelming evidence shows the many ways in which the legislature used race as the predominant, overriding criterion in constructing the district.

Under both the 2001 plan and the 2011 plan, District 71 contained portions of the city of Richmond and Henrico County. Pl. Ex. 50 at 69, 71. The incumbent delegate, Jennifer McClellan, had represented District 71 since 2005 and had won each election thereafter by overwhelming majorities. 1st Trial Tr. at 23-27. After hearing McClellan testify consistently at both trials, we find that her testimony was highly credible and was corroborated by other evidence in the case.

Two features of District 71 at the time of the 2010 census motivated the 2011 boundary changes, and had ripple effects throughout the Richmond/Tri-City region. First, District 71 was underpopulated by about 5,800 people. Pl. Ex. 50 at 72; Pl. Ex. 69 at 15. Even more importantly, however, District 71 was racially heterogeneous and had the lowest BVAP of any of the challenged districts at 46.3%, down from about 55% in 2001. Pl. Ex. 50 at 72; 1st Trial Tr. at 25. Because of this low starting BVAP, Jones conceded that the 55% BVAP threshold impacted the way the district was drawn. 2nd Trial Tr. at 532-33.

To increase the district's BVAP by nearly nine percentage points, more than 11,000 people with a 21.3% BVAP were moved out of District 71, and more than 17,000 people with a noticeably higher 72.1% BVAP were moved into District 71. Pl. Ex. 50 at 72-73, 77. Accordingly, the difference in BVAP between the groups moved in and out of District 71 was more than 50 percentage points. Pl. Ex. 50 at 77. Notably, areas moved out of District 71 into non-challenged districts had an extremely low 6.6% BVAP. Pl. Ex. 50 at 79.

In addition to these racial discrepancies in population movement, three line-drawing decisions clearly illustrate the importance of race in the construction of District 71. First, the district added several heavily populated, high BVAP Richmond VTDs to its eastern edge, which VTDs previously were located in Districts 70 and 74: VTD 604 (91% BVAP), VTD 701 (97% BVAP), VTD 702 (94% BVAP), and a portion of VTD 703 (90% BVAP). Pl. Ex. 64 at 9-10; Pl. Ex. 69 at 24, 29; DI Ex. 94 at 3-5. VTDs 701, 702, and part of 703 were removed from neighboring District 70 over the objection of the District 70 incumbent, Delegate Delores McQuinn, who resided nearby and had long represented these areas as a delegate and, earlier, as a member of the school board. DI Ex. 94 at 3-4; 2nd Trial Tr. at 56, 97-98, 103-04, 533. Nevertheless, McQuinn understood that she "would have to lose some of the African-American population in that area" so that District 71 would receive sufficient black voters to achieve the 55% BVAP threshold. 2nd Trial Tr. at 103-04. Jones himself conceded that this eastward move into District 70 was required to ensure that District 71 had sufficient BVAP to meet the 55% number and, thus, that the 55% BVAP threshold impacted the drawing of the district's lines. 2nd Trial Tr. at 532-33; see also DI Ex. 94 at 4.

Second, despite Jones' contention that he sought to make District 71 more "Richmond centric" by removing three predominantly white Henrico County VTDs at the northwest edge of the district, he proceeded to add the Ratcliffe VTD from Henrico County to the eastern end of District 71. 1st Trial Tr. at 305; 2nd Trial Tr. at 177-78, 531. Ratcliffe, unlike the three predominantly white Henrico County VTDs removed from District 71, had an 83% BVAP. Pl. Ex. 69 at 21, 24; see also 2nd Trial Tr. at 48-49.

And finally, VTD 207, part of the Fan neighborhood of Richmond, was removed from District 71 and transferred into District 68, represented by then-incumbent Republican Delegate Manoli Loupassi. Pl. Ex. 69 at 17-19; 2nd Trial Tr. at 36, 175-76. As a result, the Fan neighborhood, which previously was contained primarily within District 71, was split between District 71 and more-suburban District 68. 2nd Trial Tr. at 28, 34-36, 165. Prior to the 2011 redistricting, the entirety of VTD 207 had been located in District 71 for at least 20 years. 2nd Trial Tr. at 35-36.

McClellan testified that she strongly opposed removing VTD 207 and sought to minimize splitting the Fan, the neighborhood where her own residence was located. 2nd Trial Tr. at 28, 36, 38. VTD 207 was heavily Democratic, had high levels of voter turnout, and had been a strong base of support for McClellan, but had a very low 3% BVAP. Pl. Ex. 69 at 17; 1st Trial Tr. at 39; 2nd Trial Tr. at 35, 52. According to McClellan, when she approached Jones with her con