Académique Documents
Professionnel Documents
Culture Documents
v.
MEMORANDUM OPINION
District Judge,
and PAYNE,
to
violation
be
of
an
the
unconstitutional
Equal
Protection
racial
Clause
gerrymander,
of
the
in
Fourteenth
See Page v.
Va.
Va.
June
(Page I),
58 F.
Cantor
v.
5,
2015);
Supp.
Page
3d 533
Personhuballah,
v.
Va.
(E.D. Va.
135
s.
State
2014),
Ct.
Bd.
of
Elections
1699
(2015).
We
plan
September 1, 2015.
act.
to
remedy
the
constitutional
violation
by
parties
to
We
submit
proposed plans.
On November 13, 2015, the Supreme Court noted that it would
hear argument in Intervenor-Defendants' 2 appeal of the liability
judgment, asking the parties to additionally address whether the
Intervenors have standing to bring the appeal.
Personhuballah,
No.
2015).
reviewing
After
nonparties,
Also
on
Dr.
that
14-1504,
2015
all
WL
plans
3867187
submitted
See Wittman v.
(U.S.
by
Nov.
13,
parties
and
day,
the
Intervenor-Defendants
moved
to
2015.
suspend
review.
responsive
December 14,
We
briefing
ordered the
to
the
parties
special
to
master's
report,
and
on
special
master's
recommendations
and
whether
to
stay
our
find
of
that
one
Congressional
the
two
plans
Plan Modification
constitutional
Accordingly,
the
we
violation
direct
16
that
proposed
("Plan
we
by
16"},
described
Defendants
the
To that end,
to
we
Dr.
Grofman,
best
remedies
in
Page
implement
II.
the
I.
A.
Plaintiffs Gloria Personhuballah and James Farkas 3 reside in
Virginia's Third Congressional District.
In Page I,
they sued
Dawn Curry Page was also a named plaintiff at the time the
suit was filed, but was later dismissed from the case.
4
Fourteenth Amendment's
Equal
We
Protection Clause.
held that
was
not
government
because
narrowly
interest,
the
as
General
indicating that
tailored
required
to
to
Assembly
advance
survive
did
not
compelling
strict
have
scrutiny,
any
evidence
("BVAP")
of
55%
was required in the Third District for the plan to comply with
Section 5 of the Voting Rights Act.
the Supreme Court,
Legislative
(2015).
Cantor
Black Caucus
v.
v.
Alabama,
135
S.
s.
Ct.
1699
Personhuballah,
135
1257
Ct.
(2015)
(mem.) .
We
reconsidered
mandate,
again
ordered
the
districting
Assembly
the
found
the
Virginia
plan
failed
remedial plan.
by
to
case
Third
General
we
accord
District
1,
took
with
Court's
and
to
new
implement
2015.
up
the
unconstitutional,
Assembly
September
act,
in
the
When
task
the
of
General
drawing
to
requisites
reapportion
according
in
fashion
timely
to
after
federal
having
constitutional
had
an
adequate
opportunity to do so."
377 U.S.
533,
586 (1964))}.
To
desiring
that
to
end,
do
we
so
directed the
to
submit
parties
proposed
and any
remedial
nonparties
plans.
The
addition,
nonparties
OneVirginia2021;
the
Richmond
First
and Bull Elephant Media, as the former did not include a map and
the latter did not include the shape file we had required for
detailed analysis.
B.
The
2016
Virginia.
congressional
Candidates
qualified voters
explained that,
its
best
to
on
were
election
set
January 2,
to
cycle
start
2016,
has
begun
in
seeking petitions
of
and the
just
Defendants
have
implement
any
judicial
order,
the
risk
of
error
implementation
would
be
impossible,
they
say
it
would
be
suspend
our
II.
We
first
address
the
Intervenors'
motion
to
parties
agree
Virginia
from
that,
because
conducting
our
another
extant
injunction
election
under
the
not
we
provide
injunction
an
to
alternative
allow
the
plan,
2016
must
election
either
to
modify
proceed
that
under
the
equities
remedial
favors
plan,
or
alternatively,
"suspend [ ing]
ECF No.
271.
balance
of
the
that
351
(1982)
(per curiam),
(1988),
389
Richland County
at
the
mental
The
application
heal th
district
of
facility
court
the
it
so
Fair
Labor
operated would be
held,
and
the
the
appellants
filed
their
Circuit
454 U.S.
notice
Act
to
the
unconstitutional.
Ninth
Standards
of
issued
Then,
at 389.
appeal,
the
Ninth
Id.
at
390
Here,
n.2.
in
contrast,
our
entering
remedy would not in any way affect the liability decision now
before the Supreme Court.
Similarly,
it
could
portion
resolve
of
the
unconstitutional
jurisdiction"
before
Locke,
[the
judgment
that
because
Court]."
4 71 U.S.
statement
statutory questions
at
92.
to mean that
"such
Wells
The
even
declaring
provides
an
an
Act
[the
Court]
appeal
brings
Fargo,
485
U.S.
it
was
Congress
of
with
the
at
"the
appellate
entire
354;
case
accord
their appeal
of the
liability judgment
also brings the remedial aspect of the case before the Supreme
Court.
7
The
clear
meaning
of
the
phrase
"the
entire
case"
in
constitutional
claims
in a
single
liability case-that
is,
jurisdiction of
See Griggs
Provident
curiam)
("The
Consumer
filing
Disc .
Co . ,
of
notice
4 5 9 U. S .
of
5 6,
appeal
58
is
( 19 8 2 )
an
(per
event
of
aspects
of
the
case
added) ) .
Because
the
"aspect[]
of
case
the
involved
remedial
in
phase
involved
in
the
of
the
appeal."
this
(emphasis
case
is
appeal,"
we
not
an
retain
implementation
consideration
of
the
of
remedy
Intervenors'
pending
appeal.
the
Supreme
We
Court's
consider
four
( 3) whether issuance
of
the
the
stay
will
substantially
injure
other
parties
Hilton v.
lies."
Braunskill,
481 U.S.
770,
776
(1987);
accord
'extraordinary relief'
burden
Larios
v.
any
Cox,
less
305
exacting
F.
Supp.
in
the
2d
1335,
redistricting
Bd.
1336
context."
(N.D.
of Educ.
v.
Ga.
2004)
Scott,
404
The
Third
Congressional
unconstitutional,
District
including
with
as
the
presently
benefit
drawn
of
the
to
be
Supreme
majority-minority
district
without
that
that
evidence
Alabama,
135 S.
Ct.
at 1272.
our
holding
as
to
liability
was
driven
by
our
District.
error; thus,
can
only if "it
reverse
conviction
that
Cromartie,
532 U.S.
is
'left with
mistake
234,
has
242
been
the
definite
firm
Easley
committed.'"
(2001)
and
it
v.
argument
Because-unlike
Court
must
in
in
make
direct
the
appeals
context
decision
is
not
of petitions
on
demanding
for
the merits
in
one.
certiorari-the
direct
appeals,
resolution
of
jurisdictional statement,
that
further
briefing
case
the
so
is
opposing motion,
and
argument
is
from
clear
unnecessary.
appeal context, J
is
whether,
presented by
counsel
opposing motion,
in
("[In
after
reading
the
the
the
condensed
jurisdictional
arguments
statement
the
and
the
be
a
introduction
'importance'
decided that
waste
of
of
the
oral
time."),
word
argument
with
id.
'compelling'
and
at
and
further
240
briefing
("[T]he
the
use
recent
of
the
utilizes
highly
selective
standards
of
review
[for
granting
that
decided.
there
is
some
doubt
as
to
how
the
case
will
be
B.
Nor
injury
have
that
public.
the
outweighs
While
districts
Intervenors
we
any
accept
affected
by
shown
injury
that
our
to
the
personal
the
Plaintiffs
Intervenors
chosen
irreparable
remedy
who
will
and
the
live
have
in
more
reverses,
they
nonetheless
have
the
benefit
of
knowing the two possible maps that will be in place at the time
of the elections.
two
incumbents
Intervenors
can
are
paired
gather petition
in
single
signatures
district.
primarily
in
The
those
contingency plan,
with
campaigns.
the
effect
"giv[ing]
11
appellant
the
fruits
of
victory
whether
Barber,
252
or
F.2d
not
550,
the
553
appeal
(9th
has
Cir.
Jimenez
merit."
The
1958).
v.
Intervenors
Court's
Intervenors
judgment
do
on
review.
not
the
Thus,
have
merits,
even
standing
the
if
to
the
Court
appeal
Intervenors
or
say
finds
the
affirms
our
that
the
2016
implementation
The
election.
effect
of
our
would
chosen
be
to
remedy
give
the
until
the
Intervenors
2018
the
c.
We also find that granting a stay will substantially injure
The Plaintiffs
racially
right,
such
violates
harm."
1996)
the
"Deprivation
gerrymandered.
as
limiting
Equal
Johnson v.
right
Protection
Mortham,
(citations omitted)
373-74 (1976)).
the
to
Clause,
926 F.
vote
of
in
fundamental
manner
constitutes
Supp.
1540,
irreparable
1543
that
(N.D.
Fla.
427 U.S.
34 7,
Enacted Plan even if the Supreme Court affirms our finding that
the
Plan
is
unconstitutional-and
12
to
do
so
in
presidential
harm.
"With
reasonably
process
respect
endeavor
which might
to
to
the
avoid
result
timing
a
from
of
relief,
disruption
of
court
the
can
election
requiring precipitate
changes
adjusting
Reynolds,
to
the
377 U.S.
requirements
at 585.
of
the
court's
decree."
or be
implementing
new
relatively manageable
districts
task;
at
then,
time
when
if
the
Court
it
remains
reverses,
a
the
13
D.
Finally,
Plaintiffs'
and
interests,
Defendants'
thus
militates
Congressional
District.
In
the
addition,
harms
to
the
Constitution.
As
the
Supreme
Court
has
noted,
once
unusual
case
in which
taking appropriate
action to
court
would be
insure
that no
we
decline
to
stay
justified in
further
not
elections
Id.
the
implementation
of
drawing
remedy.
III.
We
turn
to
the
redistricting
plan
Perez,
Ct.
v.
132 S.
Finch,
interests
remedy.
faces
934,
431
U.S.
that
must
an
940
407,
be
A court
tasked
"unwelcome
(2012)
obligation,"
(per curiam)
415
(1977)),
balanced
are
14
with
as
better
Perry
v.
(quoting Connor
the
conflicting
suited
to
the
legislative process,
see White,
412 U.S.
at
794-95
("From the
matter
(quoting
for
legislative
Reynolds,
377
consideration
U.S.
at
and
586)).
determination.'"
However,
given
the
so,
within the
bounds
law.
A.
First and most fundamentally, Article I,
Constitution
population
"requires
equality
"[c]ourt-ordered
districts
congressional
'as
nearly
districts
are
as
held
is
7-8
( 1964));
(1997)
see
also
to
achieve
practicable,'"
to
higher
Section 2 of the
standards
Abrams v.
and
of
Johnson,
135
S.
Ct.
at
1271
(" [Tlhe
since
no
"significant
state
policy
or
unique
features"
420 U.S.
1, 26
B.
15
Second,
( 1993) ,
Plan.
we
must
remedy
violation that
In
Page
insistence on a
II,
55%
the
Shaw
v.
Reno,
509
U.S.
630
BVAP
found
that
in the
the
General
Assembly's
Third Congressional
District
either
principles"
do,
not
Shaw requires
to racial considerations,
id.
at
642,
or,
if they
compelling
governmental
districting
principles
interest,"
in
Virginia
id.
at
include
6,
"respect
3604029,
at
for
*10
political
(quoting
subdivisions,"
Shaw,
509
Traditional
643.
the
districting
"traditional
subordinate
that map-
constitutional
Const. art.
Page
U.S.
II,
at
2015
64 7)
'
II,
WL
and
16
The
shape
Third Congressional
and a
composition
District
of a
predominantly African-American,
River," id.
with
at
Richmond
*11,
"reflect [s]
disparate
chain
both
of
an
odd
communities,
James
to
the
west.
Our
Page
II
decision
was
the
District,
he
was
guided
by
the
neutral
goals
of
Those districts
Based on the
40%
Dr.
The BVAP
BVAP "somewhat
voters'
ability to
need for Dr. Grofman to alter Plan 16 to increase the BVAP of the
Third District.
17
Plan
16
also
improves
vastly
the
Third
District's
compactness
compactness
scores
across
all
the
affected
districts.
The
U.S.
725,
762
addition,
Plan
16
(1983)
(Stevens,
relies
on
land
contiguity;
at *11
("Here,
concurring)).
J.,
while
In
water
it can be abused.
See
in drawing the
the legislature
Newport News,
and Hampton.") .
be
race-based,
thus
likely
triggering
strict
scrutiny.
Though the plans lower the BVAP in the Third District to just
over 50%,
record
indicates
that
significantly
lower
BVAP
as the
would
be
18
of
The
choice.
50%
BVAP thus
cannot be
said to be
narrowly
limited
Alternative
Plan,
We
otherwise.
disprove
approval
the
which
in
Page
had
the
highlighted
the
claim
that
"the
II
same
of
BVAP,
the
does
Alternative
population
Plaintiffs'
not
Plan
swaps
suggest
simply
to
involving
the
Id. at
racial
bloc
voting
analysis;
nor
did the
Plaintiffs
have
the
c.
Third,
our
implementation
of
remedial
plan
"should
be
Seamon,
456 U.S.
37
( 1982}
(per curiam},
the
Court found that the district court had exceeded the bounds of
its
authority
when
only
two
of
twenty-seven
districts
were
In White v.
Weiser,
the
Court
reversed,
finding
that
the
district
explanation
chose
districting policy."
the
plan
412 U.S.
at
that
796.
it
and
"ignored
legislative
In Abrams,
like here,
gerrymandering,
and
shape
and
the
"contorted
of
the
district
the
undue
could
be
redrawn
without
approved
the
district
changing
most
521 U.S.
court's
or
of
The Court
at 77.
remedial
all
plan,
which
Georgia's
traditional
districting
principles,
and
considering
race as a
Id.
at
86.
Reading
these
cases
together,
we
conclude
that
to
best
balance the need to remedy the Shaw violation with the deference
otherwise due
redistricting choices,
our chosen remedial plan should not alter any districts outside
of
the
Third
substantial
District
and
those
abutting
it,
See id.
but
may
Whereas
make
the
only
requires
changes
congressional districts.
20
to
five
of
Virginia's
eleven
districts that do not abut the Third, 10 while altering the Third
and its abutting districts only as necessary to remedy the Shaw
violation.
In addition,
remedial
court's
plan.
plan
"[p] rotecting
find
id.
at
considered
incumbents
from
84
but
(finding
valid
subordinated
contests
with
the
each
district
factor
other") .
NAACP Plan 6,
the
that
Shaw
in this regard.
violation
while
of
We
Grofman,
equal
population
and
General
Assembly's
Republican-Democratic
policies
split.
requires
That
is
not
maintaining
correct.
an
8-3
Though
but
subordinated,
protecting
incumbents
from being
21
and at
at 88
other
demonstrated"
the
policy
constitutional
could
requirement
be
followed
that
race
not
This is
partisan gerrymandering.
Ariz.
Indep.
("'Partisan
at
316
Ariz.
Redistricting Corrun'n,
135 S.
gerrymanders,'
Court
incompatible
Jubelirer,
e.g.,
with
democratic
541 U.S.
(Kennedy,
this
267,
J.,
292
State Legislature v.
Ct.
has
principles.'"
(2004)
concurring
2652,
2658
recognized,
(quoting
the
'are
Vieth
(plurality opinion)
in
(2015)
judgment))
v.
and id.
(brackets
omitted)) .
D.
Finally,
federal
5 21
law-in particular,
U. S.
court
at
96
should
Rights Act]
(explaining that
follow
the
standards . .
130,
149
(1981)));
does
"in fashioning
appropriate
.
See Abrams,
at
the
Section
very least
the
[of
as
(quoting McDaniel v.
id.
at
not
apply to a
22
90
("On its
face,
plan,
the
an
Voting
equitable
Sanchez,
the
452
[of the
court-ordered remedial
section
when
exercising
their
equitable
powers
to
redistrict.") .
Al though the Court's decision in Shelby County v.
133 S. Ct. 2612
Holder,
meet
strict
predominate
in
scrutiny,
Dr.
adoption of it.
as
Grofman's
In addition,
racial
drawing
considerations
of
the
map
or
did
not
in
our
an equitable
~'
133 S.
only
on
the
Ct.
factor
in our remedial
at 2631
coverage
Cf.
calculus.
Similarly,
Shelby
5 itself,
though
the
11
we think it
appropriate
to
implement
plan
that
complies
with
federal
"requires
the
ability to elect
135
S.
Ct.
at
jurisdiction
to
maintain
preferred candidate
1272.
Section
'equal opportunity'
to
of choice."
prohibits
denying
'participate in the
the
minority
geographically
compact
member district"
majority
"votes
is
group
to
and is
constitute
majority
"politically cohesive,"
sufficiently as
bloc
to
(quoting 42 U.S.C.
1973(b)
large
"sufficiently
in
and
single-
enable
it . . .
Abrams,
521 U.S. at
and Thornburg v.
Gingles,
to
478
Grofman' s
Plan 16 results
in a
BVAP of 45. 3%
in the
In contrast,
the Enacted Plan has a BVAP of 56.3% in the Third District and
31. 3% in the Fourth District.
of previous elections
that
the
minority
in the
choice
Dr.
relevant
candidates
likely
receive
Grofman' s
mind.
24
District with a
consistent
Alabama.
with
Section
See 135 S.
BVAP.
45.3%
S's
Ct.
requirements,
at 1273
as
articulated
in
Rather,
Section 5 is satisfied
Dr.
candidates
indicates
analysis
Grofman's
that
receive over
significantly
majority
does
not
below-majority
"vote[]
BVAP
sufficiently
indicates
as
bloc
that
to
at 91
(quoting Thornburg,
478 U.S.
the
enable
Abrams,
at
We therefore
find that
Page
II
criteria.
traditional
the principles
underlying Sections
25
2 and
5 of the
remedial mandate.
It is so ORDERED.
Isl
Isl
Albert Diaz
Liam O'Grady
Richmond, Virginia
Date:
January 7, 2016
26
I.
I
And,
decision.
II.
For the reasons set forth in the dissent on the merits of
this
case,
proved
that
predominated
over
(E.D.
Va.
June 15,
traditional
redistricting
Of Elections,
2015).
2015 WL 3604029,
Therefore,
at *19-26
said,
if
the
majority
by
the
majority
opinion
on
the
merits
is
("Congressional
Modification
16")
that
merits.
There
reasoning
for
the
is,
majority
however,
rejecting
the
identified
one
in
its
component
Intervenors'
of
the
remedial
on
the
majority's
plan
In particular,
opinion
as
to
I refer
to be consistent
remedial
plan
must
maintain
the
8-3
Republican-Democrat
majority
concludes
"[t]hat
is
not
correct,"
and
Arizona
State
Comm'n,
135 S.
Legislature
Ct.
2652,
v.
2658
Arizona
(2015)
Indep.
Redistricting
267,
292
(2004).
Rather,
am
of
the
view
that,
under
current
Supreme
Court
the
basis
always
be
of
political
constitutionally
Va.
there
is
Supreme
partisan
affiliation
Oct.
22,
considerable
Court
remains
political
preference
permissible."
Of Elections,
2015)
or
not
Bethune-Hill
v.
2015 WL 6440332,
(citations
uncertainty
quite
may
on
fractured
gerrymandering,
on
point
the
including
because
Parsons,
CLEARING
THE
POLITICAL
THICKET:
the
legitimacy
whether
*32 n. 21
Nonetheless,
omitted).
the
at
Why
of
claim
Michael
Political
(Dec.
15,
"Parsons
2015),
at
p.
demonstrates
http://ssrn.com/author=2449663
__ ").12
that
the
well,
that
legislatures,
political
In
my
law
on
view,
political
Unfortunately,
uncertainty
lawyers,
and
gerrymandering
is
that
(hereafter
article
clearly
gerrymandering
is
has
led
even
some
to
the
courts
constitutionally
view
that
among
partisan
permissible
in
such
gerrymandering
only
in
quite
limited
circumstances.
Neither in the merits phase in this case nor in BethuneHill
did
the
Plaintiffs
contend
that
unconstitutional.
need to confront
issue
case.
Now,
that
however,
the
gerrymandering
Hence,
there was
for
no
of either
Intervenors
that,
have
said
in
Court
necessarily
political gerrymander.
must
confront
In my view,
whether
to
effect
12
The
author
of
this
thorough,
thoughtful,
and
comprehensive article is a former law clerk to the undersigned.
29
First,
no
district
when
court,
the
intent
political
of
conferring
advantage.
or
Beyond the
confronted
with
the
limited context
of
"avoiding
between
incumbent[s],"
725,
(1983),
considerations
courts."
(5th
"have
no
in
1985).
Indeed,
entanglements,
courts
even
limited
this
constitutional
and
have
in
an
often
context
1361
98223,
plan
statutory
(N.D.
Ga.
at *16-17
2004);
formulated
effort
U.S.
by
the
to
avoid
"distinctly
imperatives
political
subordinate"
as
well
Larios v. Cox,
19,
as
314 F.
(E.D.N.Y. Mar.
462
as
Daggett,
Cir.
in
place
v.
partisan
contests
740
Karcher
2012); Essex v.
other,
Supp.
Cuomo,
to
2d
2012 WL
Kobach,
847
1556,
Johnson,
1565
521 U.S.
(S.D.
74
Ga.
1995),
(1997);
aff'd
Good v.
sub
Austin,
nom.
800 F.
Abrams
Supp.
v.
557,
for
advantage
there
the
is
is
purpose
strong
of
argument
achieving
unconstitutional
because
that
gerrymandering
or
maintaining
it
is
denial
partisan
of
the
THICKET.
redistrict
jurisprudence,
even if a
court,
legislature
III.
Contrary
implementation
to
of
the
the
majority's
remedial
plan
view,
should
think
be
stayed pending
Robinson,
that
432
The
F. 2d 977,
Fed.
104
Power Cornm'n,
U.S.
App.
D.C.
106
(1958))
has,
in my
13
31
A.
Likelihood of Success
For the reasons set forth in the dissent on the merits, and
as
further
explicated
in
Bethune-Hill,
think
that
the
have
"substantial
think that,
case
on
at the least,
the merits,"
Braunskill,
481 U.S.
770,
777-78
(1987);
and
Hilton
Project Vote/Voting
For America, Inc. v. Long, 275 F.R.D. 473, 474 (E.D. Va. 2011).
The linchpin of the majority opinion is its view about the
effect of the
Enacted CD3.
use of a
55%
*14-15.
case
how
is
to
apply
Alabama Legislative
(2015).
the
principles
Black Caucus
v.
recently
Alabama,
135
announced
S.
Ct.
in
1257
sum,
this
Court
has
decided
two
dispositive,
but
Both
cases
are
presently
three-judge
courts
disposi ti ve
together,
issues
three
pending
in
in
this
the
district
involve five
Supreme
to
Court.
have
The
decided
respectfully
submit,
among
finding that
that the
Taken
key issues.
issues
these
Court. 14
judges of this
two
demonstrates
reasonable
there
is
jurists.
conflict
That,
in
on
That,
two
turn,
critical
warrants
Intervenors have a
strong arguments
1317
(N.D.
Fla.
2011);
2015 WL 5772107,
McConnell
Fed.
Election
at *2
Corrun'n,
(D.
Ore.
253
F.
case,
in view of
Florida v.
stay is warranted.
Winery Corp.,
v.
on both sides of a
780 F.
Supp.2d
Scott Henry's
Sept.
Supp.
30,
2d
2015);
18,
19
(D.D.C. 2003).
14
33
B.
I
Irreparable Injury
think
that
there
is
little
doubt
that
irreparable
of
the case.
To
begin,
landscape
for
irreparably.
once
the
the
2016
remedial
election
plan
will
is
implemented,
change
immediately
the
and
particular,
the
Intervenors
will
have
to
run
in
the
if the case is
And,
they will
And,
of course,
expressed by my colleagues
With all
respect to the
in the majority,
think the
In
fact,
both
the
the
added
expense
to
all
challengers, a certainty.
the incumbents
each district
politics
think,
candidates,
(to
makes
both
campaign
in
considerable
incumbents
and
local," 15
is
majority
it
is
also
Moreover,
likely
that
because "[a]ll
the
issues
of
the case of CD3, 16 CD2, and CD4, where the composition, geography
and demography significantly change in the remedial plan.
The
prospect
circumstances
of
running
presents
parallel
realistic,
campaigns
serious,
under
and
such
immediate
by
organizations
the
and
need
to
advertising
fund
two
programs,
That harm is
different
depending
on
campaign
who
the
15
35
expense
advertising,
of
maintaining
that
burden
is
campaign
a
heavy
organizations
one.
That
Given
and
burden
of
could
addressing
irreparable
injury,
"[t]he effect
has
majority
the
Supra at 12.
With respect for that view, I do not think that, on the facts of
this
case,
our
decision
on
the
request
for
stay
should be
On
that
in
score,
essentially
Moreover,
we
its
must
be
current
mindful
form
that
without
CD3
complaint
respectfully am unable,
ascribe
existed
since
1999.
has
any
import
to
in assessing
the
irreparable
"unwarranted
concept.
36
On this record,
fruits
injury,
of
to
victory"
C.
I
not
justify the
Court
were
to
denial
stay
of
entry
stay.
of
recognize
remedial
plan,
that,
if the
regardless
of
time
constraints
u.s.c.
imposed
20302,
by
the
arguably
federal
require
MOVE
Act,
that
the
52
2016
However,
the time constraints imposed on the Court and the Defendants are
a
direct
result
Complaint
enacted.
until
Two
of
Plaintiffs'
almost
two
choice
years
congressional
complaint
Plan,
to the
may
be
the
elections
election cycle.
after
to
delay
filing
plan at
have
at worst,
their
issue was
already
Plaintiffs'
been
relief
until
long
after
the
implementation
of
the
Enacted
not,
in
Defendants;
my
view,
and,
outweigh
the
harm
to
the
17
37
the
affected
liability
be
districts,
should
the
Normally,
affirmed.
majority's
of
course,
finding
federal
of
law
u.s.c.
However,
7.
u.s.c.
8.
State,
District,
or
Territory
for
Representative
or
or
incapacity
of
person
may
elected,
be
8.
Columbia,
circumstances,
exigent
this
"construe[d]
circumstances
section
this
arising
under
section
prior
to
to
similar
mean
or
factual
that
where
the
date
on
state
may
postpone
the
38
election
until
the
earliest
practicable
Busbee
date."
v.
Smith,
549
F.
Supp.
494,
525
In
Busbee,
reapportionment
Act,
and
plan
therefore
prescribed
entered
the
order
congressional
districts,
Section
constituted
law. " 19
by
an
violated
Id.
setting
elections
in
of
the
"failure
to
elect
at
an
amended
of
Voting
at
Accordingly,
525.
two
Georgia's
that
concluded
court
schedule
the
affected
Rights
the
the
for
time
court
Georgia's
congressional
Id.
The
burdens
state]," but
5' s
of
double
found
that
election
this
on
employed voters
burden was
[and the
outweighed by Section
discriminatory plan.
Id.
The
same
is
true
here;
Page I I majority,
non-
should the
18
39
as here,
the same since 1999 and there was a lengthy delay between the
redistricting and the institution of this action. 20
On the record in this case, I think that the balance of the
equities as between the parties calls for the exercise of our
discretion to grant a stay so that the Supreme Court can decide
the merits of this case before a remedial plan is implemented.
It also is appropriate in assessing the injury to the Plaintiff
and
the
animating
balance
force
of
for
the
this
equities
case.
to
remain
In particular,
mindful
this
of
the
case was
20
40
of
the
National
Democratic
initial
Plaintiffs'
fee
Trust. 21
Redistricting
application
in
this
case
up
(ECF No.
client.
with
[redacted]
and
112-4,
local
at
contacts
(invoice
entry
regarding
for
finding
plaintiffs.").
I
but
That is particularly so
remained
month
unchallenged
since
1999,
redistricting
and
considering
and the
filing
the
21
of
this
affirmed,
the
action.
Clearly,
Plaintiffs'
if
rights
the
majority
will
have
opinion
been
is
aggrieved
and
how
the
But where,
as here,
not originate the idea of the suit and, where, as here, there is
21
41
long delay between the alleged affront of the right and the
brief
it is appropriate,
stay to
allow
result
account.
therefrom,
After all,
Supreme
Court
to
full
in deciding whether to
consideration
to
important
real
world
be
of
lawful
one,
conditions
into
if it is found by the
reflects
the
rights
of
plan
drawn
respectfully
by
their
submit,
elected
must
be
representatives.
considered
in
That,
balancing
I
the
equities.
D.
by
the
unsettled,
staying
implementation
Supreme
Court
of
decides
the
the
remedial
plan
until
important,
and
quite
As shown above,
the
redistricting
proper
CD3
and
decision in Alabama)
the
application
of
the
recent
the
issue
Intervenors
partisan
on
political
the
remedy
objectives)
is
(adherence
the
subject
to
legislative
of
substantial
respectfully submit,
the
practical
consequences
to
the
public
of
the
implementation of the
have
been moved
out
of
their
current
districts
for
the
engender
foster
voter
confusion,
expense.
stay
reduce
and their
participation,
legislators,
administrative
and
complexity and
pending
appeal
will
mitigate
the
likelihood
of
public
as the majority
but,
to me,
they
and,
in my view,
likely will,
election.
43
skew the
results of the
Furthermore,
elections
the
conducted
public
in
has
perspective
an
interest
of
the
in
guidance
orderly
of
the
Supreme Court.
case.
(E. D.
Page v.
Va.
Feb. 23,
2015).
different
landscape
principle
that,
there,
where
of Elections,
2015 WL 763997
important
we
recognized
relevant
the
issues
are
important
pending
before the Supreme Court, we ought to stay our hand to await the
judgment of the
Supreme Court.
think that
principle
fully
applies here.
For the foregoing reasons,
Isl
Robert E. Payne
Richmond, Virginia
Date: January 7, 2016
44