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Voters Ask SCOTUS to Take Gerrymander Case

RICHMOND, Va. (CN) - A group of black voters who saw their gerrymandering claims against state Republicans shot down by a federal court say they will appeal the case to the U.S. Supreme Court.

A divided three-judge panel of federal judges ruled Oct. 22 that the 12 House of Delegates districts the plaintiffs had challenged are constitutional.

Their ruling comes just three months after a separate three-judge panel sided with voters challenging the state's redistricting of its congressional district map four years ago.

In the wake of the latest decision, Virginia House Speaker William Howell dismissed the lawsuit as a "politically motivated" gambit funded by "liberal billionaires."

In a statement Howell expressed surprise the suit was ever filed, given that "the House districts were adopted with bipartisan support, including the support of a majority of the African-American members in the House of Delegates at the time."

The voters sued the Virginia State Board of Elections and Virginia Department of Elections on Dec. 22, 2014, saying the committee drafting the districting plan violated their electoral rights by packing black voters into fragmented and irregularly shaped district lines -- targeting a 55 percent threshold and significantly decreasing compactness in these areas.

"As a result, African-American voters were illegally packed into the Challenged Districts, thereby diminishing their influence in the surrounding districts," the complaint said. "The General Assembly adopted the 55% racial threshold without justification, including any determination that the threshold was reasonably necessary to avoid retrogression in each of the Challenged Districts or otherwise comply with the Voting Rights Act of 1965." The plan, which was approved by former Virginia Governor Bob McDonnell on April 29, 2011, divided Virginia into 100 House of Delegates districts, including the 12 challenged in the complaint.

In an Oct. 22 opinion dismissing the case, Senior U.S. District Judge Robert Payne wrote that he and U.S. District Judge Gerald Bruce Lee found that race was not a predominant factor in drawing 11 of 12 of the disputed districts.

As for the remaining district, which inspired closer scrutiny because it was so oddly shaped, the judges in the panel majority again decided the case in the state's favor.

"On the evidence submitted, political advantage (based on partisan performance data) has been shown to have been the dominant and controlling consideration guiding the district's unorthodox boundaries," Payne wrote.

In dissent, the third member of the panel, U.S. Circuit Judge Barbara Milano Keenan, said while she had no doubt that individual legislators acted in good faith in the redistricting process, the end result should have been invalidated on the grounds, in her view, that it violates the Equal Protection Clause.

"This case presents a textbook example of racial predominance, in which a uniform racial quota was the only criterion employed in the redistricting process that could not be compromised. This one-size-fits-all quota automatically made racial sorting a priority over any other districting factor," Keenan wrote.

She continued: "Here, the plan contravened the rights of individual voters by applying a one-size-fits-all racial quota for black voters in twelve highly dissimilar districts, without regard to the characteristics of the voters or of their communities. The 55% quota thus is a classic example of race-based stereotyping and unequal treatment prohibited by the Equal Protection Clause."

During a federal bench trial earlier this year, legislators disagreed on how the general assembly arrived at the 55 percent figure. Lawmaker Chris Jones, who was instrumental in planning the redistricting, testified that the number came directly from community members during public hearings, according to the ruling.

But nowhere in the public hearing transcripts was the figure mentioned, according to court documents, which Jones later admitted he had not fully read.

Regardless of where the figure came from, Payne and Lee held the threshold was necessary to protect the interests of black voters and to ensure the re-election of incumbents.

"The plaintiffs do not take umbrage at the use of racial targets, so long as those targets serve the ends of preserving minority voters' ability to elect," Payne wrote. "If targets themselves constitute subordination, then it is hard to see how the plaintiffs have not smuggled one inquiry into the next."

"The State must consider and account for race in drawing legislative districts in order to craft a compliant plan," Payne wrote. " The mere awareness or consideration of race by legislators in their districting decisions does not, on its own, provide sufficient evidence to support a claim of racial sorting under the Equal Protection Clause."

The appeal of the ruling was filed by Aria Branch of Perkins Coie LLP in Washington, D.C.

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