No. 11-1404 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. SteppCounsel of RecordRobert E. Tyson, Jr.SOWELL GRAY

STEPP ~¢ LAFFITTE

1310 Gadsden StreetPost Office Box 11449Columbia, SC 29211(803) 929-1400rstepp@sowellgray.com

Benjanxin P. MustianTracey C. GreenWILLOUGHBY & HOEFER, P.A.930 Richland StreetPost Office Box 8416Columbia, SC 29202(803) 252-3300

Counsel for Appellees Counsel for Appellees

Dated: July 20, 2012

THE LEX GROUPpC ¯ 1825 K Street, N.W. ¯ Suite 103 ¯ Washington, D.C. 20006(202) 955-0001 ¯ (800) 856-4419 ¯ Fax: (202) 955-0022 ¯ v~vw.thelexgroup.com

QUESTIONS PRESENTED

Appellants instituted this action in the UnitedStates District Court for the District of SouthCarolina seeking declaratory and injunctive reliefregarding redistricting plans adopted by the SouthCarolina General Assembly for the State House ofRepresentatives and Congressional districts. Thethree-judge panel determined that Appellants failedto establish that race was the predominant factorused by the legislature in drawing the districts or toprove that the General Assembly engaged inintentional discrimination in drawing the districtlines. In addition, the panel correctly~ refused toconsider Appellants’ generalized grievances directedagainst districts in which none of them lived, onlyconsidering Appellants’ racial gerrymanderingclaims to the extent an individual plaintiff resided ina district that was the primary focus of their claim orprovided specific evidence that they have beensubjected to a racial classification.

The Questions Presented are:

1. Because the district court determinedthat Appellants failed to prove that the legislatureused race as the predominant factor or subordinatedtraditional race-neutral principles to race as theprimary consideration for drawing district lines,should the Court dismiss an appeal that contends, inan argument not presented to the district Court, thatstrict scrutiny of redistricting plans is required ifrace was a factor, but not the predominant factor, inthe creation of new districts?

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2. Should this Court affirm the districtcourt’s determination that Appellants do not havestanding to assert a racial gerrymandering claimconcerning districts in which none of them lived andregarding which they did not produce any evidencethat they personally were subjected to a racialclassification?

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................i

TABLE OF CONTENTS ............................................iii

TABLE OF AUTHORITIES .......................................vi

INTRODUCTION ........................................................1

STATEMENT OF THE CASE ....................................4

1. The Redistricting Process ......................4

2. Plaintiffs’ Allegations ............................5

3. Hearing on Respondents’Motions to Dismiss ................................7

4. Trial Before the Three-JudgePanel .......................................................9

5. The Decision of the District Court ......12

ARGUMENT ..........................................................:.. 15

I. Aside From Being ProcedurallyBarred, Appellants’ FourteenthAmendment Claims Fail as aMatter of Law and areUnsupported by the Record .................17

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no Appellants did not raisethe "race is a factor"argument below .........................18

Bo Appellants misstate theirburden of proof ..........................19

Co Appellants failed todemonstrate race was thepredominant factor ...................26

RepresentativeSellers and otherlegislators .......................27

2. Dr. McDonald .................28

The court’sestimation of theevidence ..........................30

4. Summary ........................31

II. Plaintiffs Lack Standing UnderUnited States v. Hays ..........................32

CONCLUSION ..........................................................37

APPENDIX

Excerpt of Trial Testimony ofCircuit Court Hearing

on March 1 and 2, 2012 .......................la

V

Excerpt of Trial Testimony ofCircuit Court Hearing

on March I, 2012 ...............................26a

Affidavit of Patrick G. Dennisentered February 28, 2012 ...............51a

Excerpt of Trial Testimony ofCircuit Court Hearing

on January 19, 2012 .......................122a

Defendant’s Motion to Dismiss onBehalf of Robert W. Harrell, Jr.,With Attached Memorandum to Support,

entered December 19, 2011 ............125a

Plaintiffs’ First Amended ComplaintFor a Declaratory Judgment andInjunctive the State of South Carolina,Relief Pursuant to the Fourteenth andFifteenth Amendments of theUnited States Constitution and theVoting Rights Act of 1965

entered November 23, 2011 ............177a

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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

vii

Mt. Healthy City School DistrictBoard 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

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. § 1973 ..........................................................1

42 U.S.C. § 1973c ..............................................1, 5, 11

RULES

Sup. Ct. R. 14 ..............................................................2

Sup. Ct. R. 14.1(a) .......................................................2

Sup. Ct. R. 18.3 ...........................................................2

Sup. Ct. R. 18.6 ...........................................................1

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OTHER AUTHORITIES

House Bill 3991 (H. 3991) ..........................................4

House Bill 3992 (H. 3992) ..........................................4

Public Law 94-171 (1975) ...........................................4.

S.C. House of Representatives Redistricting2011 Home Page, available athttp ://re districting, schouse, gov/ .................................. 4

Gina Smith, House Approves RedistrictingPlans, Dems Plan to Sue, The State, June 15,2011, available athttp://redistricting.schouse.gov/PreclearanceSubmissionH3991.html ...............................................5

MOTION TO DISMISS OR AFFIRM

Pursuant to Supreme Court Rule 18.6,Respondent Robert W. Harrell, Jr., in his capacity asSpeaker of the South Carolina House ofRepresentatives, respectfully moves the Court for anorder dismissing this appeal or, in the alternative,affirming the decision of the United States DistrictCourt three-judge panel entered on March 9, 2012.

INTRODUCTION

Following administrative preclearance ofSouth Carolina’s State House of Representatives andCongressional redistricting plans pursuant toSection 5 of the Voting Rights Act, ("VRA"), 42U.S.C. § 1973c, Appellants filed an action in theUnited States District Court for the District of SouthCarolina seeking declaratory and injunctive relief.The matter was tried on March 1, 2012 before athree-judge panel. At trial, Appellants alleged (1) aviolation of Section 2 of the VRA, 42 U.S.C. § 1973;(2) a Fourteenth Amendment racial gerrymanderingclaim; (3) a convoluted vote dilution claim under theFourteenth Amendment; and (4) a violation of theFifteenth Amendment as to both the House andCongressional redistricting plans. Following trial,the district court entered judgment in favor ofRespondents.

Appellants’ jurisdictional statement does notpresent many of the claims raised to the districtcourt. Appellants do not raise their previous votedilution challenges to the House Plan under Section2 of the VRA and under the Fourteenth and

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Fifteenth Amendments. Appellants do not seekreview of any claims pertaining to the Congressionalplan. Appellants therefore have abandoned theseissues, leaving the general Fourteenth Amendmentclaim as the sole argument presented forconsideration by the Court. See Quilloin v. Walcott,434 U.S. 246, 253 n.13 (1978) ("Since this claim wasnot presented in appellant’s jurisdictional statement,we do not consider it."); Phillips Chem. Co. v. DumasIndep. Sch. Dist., 361 U.S. 376, 386 & n.12 (1960)("Only issues raised by the jurisdictional statementor petition for certiorari, as the case may be, areconsidered by the Court."); Sup. Ct. R. 18.3 ("Thejurisdictional statement shall follow, insofar asapplicable, the form for a petition for a writ ofcertiorari prescribed by Rule 14 . . ."); Sup. Ct. R.14.1(a) ("Only the questions set out in the [petitionfor a writ of certiorari], or fairly included therein,will be considered by the Court."). Appellants alsochallenge the district court’s holding that they lackstanding to assert claims as to certain districts,because none of the named plaintiffs resides in thosedistricts.

The "central" question presented in thisappeal is "whether the Fourteenth Amendmentpermits a state to use race non-remedially to packblack voters into election districts, over and abovethe levels the VRA requires." (J.S. 5.) Appellantsallege that the district court misunderstood theirFourteenth Amendment packing claim and erred byconstruing Appellants’ claim as "a conventionalShaw v. Reno challenge." (Id.) Appellants furthercontend that the district court "ignored [the] well-established Arlington Heights/Mt. Healthy

framework of shifting burdens for determiningcausation in mixed-motive cases" and instead"purported to rely on the line of ’racialgerrymandering’ decisions starting with Shaw v.Reno, 509 U.S. 630 (1993) .... " (Id.) Finally,Appellants challenge the district court’s decisionthat "Plaintiffs had standing to assert racialgerrymandering claims only if they ’live in thedistrict that is the primary focus of their.., claim’ orthey provide specific evidence that they ’personallyhave been subjected to a racial classification."’(Appellants’ App. A, p. 7a.) (Citations omitted.)

As the district court noted, there are two typesof equal protection claims that challenge the use ofrace in reapportionment: racial gerrymanderingclaims and vote dilution claims--claims that thisCourt has observed are "analytically distinct."Miller v. Johnson, 515 U.S. 900, 911 (1995) (internalquotation marks omitted); See Also Appellants’ App.A, p. 5a. Because Appellants have abandoned theirvote dilution claim, the only issue presented iswhether theHouse plan constitutes a racialgerrymanderin violation of the FourteenthAmendment. The district court correctly appliedShaw v. Reno in analyzing this claim, andAppellants’ contention to the contrary is withoutmerit. In rejecting Appellants’ standing arguments,the district court properly followed this Court’s priorrulings in United States v. Hays, 515 U.S. 737 (1995)and Sinkfield v. Kelley, 531 U.S. 28 (2000) (percuriam), among others. Because Appellants’ claimsare foreclosed by this Court’s redistrictingjurisprudence, the Court should either dismiss

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Appellants’ appeal or affirm the decision of thedistrict court in its entirety.

STATEMENT OF THE CASE

This appeal arises out of challenges to theState of South Carolina’s enactment of redistrictingplans for the South Carolina House ofRepresentatives and the state’s Congressionaldistricts.

1. The Redistricting Process.

The South Carolina General Assembly’s("General Assembly") redistricting efforts beganfollowing the March 23, 2011 release of the officialtabulation of the population of the State of SouthCarolina by the United States Census Bureaupursuant to Public Law 94-171 (1975). After releaseof the 2010 Census data and the subsequentreapportionment of Congressional districts, throughwhich the state gained a Congressional seat, SouthCarolina had 124 House districts and sevenCongressional districts. (Resp’ts’ App. p. 186a, ¶ 26.)House Bill 3991 (H. 3991) and House Bill 3992 (H.3992) were the legislative vehicles for redrawing theState House and Congressional districts. See S.C.House of Representatives Redistricting 2011 HomePage, available at http://redistricting.schouse.gov/.

The State House and State Senate ultimatelypassed and ratified, and Governor Nikki R. Haleysigned, H. 3991 and H. 3992, thereby enacting theredistricting plans into law as Act 72 of 2011 ("House

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Redistricting Plan")1 and Act 75 of 2011("Congressional Redistricting Plan") (collectively the"Redistricting Plans").2 Subsequently, the GeneralAssembly submitted the plans to the United StatesDepartment of Justice ("DOJ") for administrativepreclearance pursuant to Section 5 of the VRA. DOJgranted preclearance to each redistricting planthereby establishing that the enacted plans do notreduce minority voting strength as compared to thepre-existing plans.

2. Plaintiffs’ Allegations.

Following preclearance, Appellants filed adeclaratory judgment action on November 11, 2011challenging the House and CongressionalRedistricting Plans. Subsequently, on November 23,2011, Appellants filed a First Amended Complaintthat, inter alia, added McKnight and Mims as

1 The General Assembly passed the House Redistricting

Plan on June 22, 2011. The vote included the affirmative voteof many Democrats and members of the Legislative BlackCaucus. The bipartisan support of H. 3991 was reflected inpublic comments made by Representative Harry Ott, HouseMinority Leader, that "[t]his plan is fair." 2011 House ofRepresentatives Preclearance Submission, Ex. 19 - Newspaperarticles discussing the South Carolina Redistricting Processand H3991, Gina Smith,House Approves Redistricting Plans, Dems Plan to Sue,The State, June 15, 2011, available athttp://redistricting.schouse .gov/PreclearanceSubmissionH3991.html. (Governor Haley signed the House Redistricting Plan onJune 28, 2011.

2 The General Assembly also passed the Congressional

Redistricting Plan on July 26, 2011 with bi-partisan support.Governor Haley signed the Congressional Redistricting Plan onAugust 1, 2011.

plaintiffs ("Amended Complaint").3 In the AmendedComplaint, Appellants alleged they were registeredblack voters residing in various House andCongressional districts in the State of SouthCarolina seeking to challenge the implementationand enforcement of the Redistricting Plans.Appellants sought both declaratory and injunctiverelief under Section 2 of the VRA and the Fourteenthand Fifteenth Amendments to the United StatesConstitution.

Appellants alleged that each of theredistricting plans "use race as the predominantfactor in drawing election district boundaries" and"result in a diminution in the political power of blackvoters whose influence is diluted by packing theminto election districts in concentrations that exceedwhat is necessary and lawful to give them an equalopportunity to participate in the political process."(Resp’ts’ App. p. 179a, ¶ 2.) Appellants also allegedthat the House Redistricting Plan (a) packed blackvoters into districts in order to create nine newmajority-minority seats; (b) wrongfully preserved thetwenty-one majority-minority seats that existedunder the benchmark plan; (c) reduced the blackvoting age population ("BVAP") percentage in housedistricts where blacks allegedly are able to elect acandidate of choice with support of the whitecommunity; and (d) disproportionately diminished

3 Originally, Plaintiffs challenged the South Carolina State

Senate redistricting plan but voluntarily withdrew thatchallenge before trial and filed a Second Amended Complaintwithout the Senate Challenge. The Second AmendedComplaint has the same claims as the First AmendedComplaint referenced through this motion.

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the political power of black voters in poor, ruralcounties. (Id. ¶¶ 43, 45.)

Similarly, Appellants alleged thatCongressional Redistricting Plan (a) unnecessarilyadds BVAP to the Sixth Congressional District;(b) reduces the BVAP in other districts, thereby"reducing or eliminating the possibility that blackvoters in these districts could work together withpart of the white community to elect a candidate ofchoice;" and (c) created a new Seventh CongressionalDistrict with a BVAP low enough "to make itunlikely black voters would have an equalopportunity to elect a candidate of choice by joiningtogether with part of the white community." (Id.¶ 47.) Appellants also claimed the redistrictingplans "deliberately reduce the number of ’crossover’districts or prevent them from emerging over timethrough natural population shifts." (Id. ¶ 79.)

Hearing on Respondents’ Motionsto Dismiss.

On December 19, 2011, Respondents moved todismiss the Amended Complaint on several grounds.Among other arguments, Respondents averred thatthe Amended Complaint did not state a cognizableclaim under Section 2 of the VRA because Appellantsfailed to allege the presence of a minority groupsufficient to constitute a majority in another district.Respondents also argued that Appellants failed topresent a reasonable alternative voting practicedemonstrating a hypothetical redistricting schemethat would result in an ’undiluted’ voting practice.(Resp’ts’ App. pp. 146a-147a, 154a-155a.) See also

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Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 480(1997) ("Because the very concept of vote dilutionimplies--and, indeed, necessitates--the existence ofan ’undiluted’ practice against which the fact ofdilution may be measured, a § 2 plaintiff must alsopostulate a reasonable alternative voting practice toserve as the benchmark ’undiluted’ voting practice.").Respondents further moved for dismissal based onAppellants’ failure to allege any intentional orpurposeful racial motivation for the RedistrictingPlans or for the General Assembly’s retention andmaintenance of majority-minority districtsthroughout the state. (Resp’ts’ App. p. 158a-159a.)Finally, Respondents moved to dismiss the claims ofcertain plaintiffs for lack of standing in that theywere not residents of the districts challenged in theAmended Complaint and only alleged generalizedgrievances against the statewide plans. (Id. at 163a-164a.)

The district court denied the motions todismiss, but expressed concern about the nature ofAppellants’ claims and required Appellants to definetheir claim and the districts they challenge, and toprovide an alternative remedy plan. (Appellants’App. A, p. 4a.) In response, Appellants alleged thattwenty-one House districts and one Congressionaldistrict were objectionable based on the alleged useof race as the predominant factor in their creation.Of the districts specified, only four plaintiffs residedin a challenged House district and only one plaintiffresided in the challenged Congressional district.Appellants also averred that thirty-nine additionalHouse districts and four additional Congressionaldistricts were objectionable as affected neighbor-

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districts because they were drawn from territorytaken from those districts alleged to have beendrawn using race as the predominant factor.Appellants further submitted alternativeredistricting plans forthe court’s considerationwhich purportedly demonstrated how Respondentscould have drawn districts that adhered to raceneutral redistricting principles while also continuingto give black voters an equal opportunity to electcandidates in the racially gerrymandered districts.

4. Trial Before the Three-JudgePanel.

On March 1, 2012, the panel convened for theparties to present evidence on the AmendedComplaint. Pursuant to the court’s order andagreement of the parties,4 the trial was abbreviatedby the use of affidavits5 and deposition testimony,with the panel allowing two days of live testimony.

4 In their Jurisdictional Statement, Appellants statethat the trial held in this matter was "dramatically truncated,"appearing to suggest that they were somehow disadvantaged inthis regard. (J.S. 14.) Respondents note that, not only didAppellants fail to object to the court’s abbreviated trialscheduling order, they accepted the proposed time frame’s,representing to the court, "[w]e’re not complaining. We thinkit’s necessary." (Resp’ts’ App. p. 122a.)

~ Appellants also unfavorably reference the court’srejection of certain portions of an affidavit submitted byRepresentative Mia Butler-Garrick on the grounds thatstatements allegedly made by Representative Thad Vierscontained therein constituted inadmissible hearsay. Appellantsassert that "[w]ere this case to be remanded, plaintiffs wouldsubpoena Rep. Viers to testify, obviating the hearsay objection."(J.S. 13.) But this issue cannot fairly be said to be included in

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Appellants presented the testimony of SouthCarolina State Representative Bakari Sellers, whoinsisted that race was the "predominant" if not "theonly factor" considered by the General Assembly inthe redistricting process. (Resp’ts’ App., p. 26a.)Yet, on cross examination, Representative Sellersrecanted, admitting that the General Assemblyconsidered many other factors during theredistricting process and that race, in fact, did notpredominate. (Id. at 40a-45a.)

Appellants also presented the testimony of Dr.Michael P. McDonald who opined that race was thepredominant factor considered by the GeneralAssembly in drawing twenty House districts and theSixth Congressional District. In reaching hisconclusions, Dr. McDonald followed a simplistic two-step approach. First, he identified certain districtsthat exchanged populations with adjoining districts.(Appellants’ App. A, p. 11a.) Second, Dr. McDonaldreviewed the plan to determine whether theseexchanges resulted in increased or decreased BVAP.(Id.) As exchanges of population almost always havediffering minority population percentages, it is notsurprising that, through the use of this misguidedand illogical approach, Dr. McDonald concluded thatrace must have been the predominant factor inmaking those adjustments. However, Dr. McDonaldconceded on cross examination that his analysis was

the questions presented by Appellants and thus is notpresented properly to this Court. See Quilloin, 434 U.S. at 253n.13 ("Since this claim was not presented in Appellants’jurisdictional statement, we do not consider it.’) Moreover, bynot attempting to subpoena Rep. Viers for trial, Appellantshave failed to preserve this issue on appeal.

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flawed and that he had failed to review theRedistricting Plans to determine whether theycomplied with a number of traditional redistrictingprinciples historically recognized by the courts andadopted by the Respondents as guiding principles incrafting the Plans ("Redistricting Criteria").6

Additionally, Dr. McDonald abjuredAppellants’ alternative redistricting plans submittedto the court. Although Appellants previouslyasserted theseplans placed a premium onmaintaining core constituencies, improvingcompactness, and keeping or making communities ofinterest whole, Dr. McDonald acknowledged that thealternative plans failed to comply with manytraditional redistricting principles. (Resp’ts’ App. p.16a-19a.) Dr. McDonald also stated he could nottestify whether his proposed plan would comply withSection 2 or Section 5 of the VRA, and that he hadnot considered prior court orders recognizing thatcertain districts should be protected as meeting therequirements of Thornburg v. Gingles, 478 U.S. 30(1986). (Id. at 19a-24a.) Tellingly, Dr. McDonaldtestified that he did not expect the court to adoptAppellants’ alternative plans. (Id. at 24a-25a.)~

~ Dr. McDonald acknowledged that he did not considerwhether the population exchanges between districts were madein order to recognize communities of interest, maintainingpolitical subdivision boundaries, incumbency, or the specificredistricting 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, SouthCarolina Senator Brad Hutto;and South CarolinaRepresentative Mia Butler Garrick.

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In response, Patrick Dennis, Chief Counsel tothe Judiciary Committee for the South CarolinaHouse of Representatives, testified by affidavit thateach of the challenged districts complied with theRedistricting Criteria by maintaining the cores ofexisting districts, moving certain district lines toabide by political subdivision boundaries, protectingincumbents, and reflecting the protection ofcommunities of interest. (See, generally, Resp’ts’App. pp. 51a-121a.) Dr. Thomas L. Brunell alsotestified the Redistricting Criteria are raciallyneutral and reflect traditional redistrictingprinciples, and that Dr. McDonald’s opinion was notthe result of any statistical analysis or supported byany empirical evidence.

5. The Decision of the District Court.

The district court issued its order on March 9,2012. With respect to Appellants’ FourteenthAmendment racial gerrymandering claim, the courtconcluded that Appellants failed to establish thatrace was a predominant factor in either ofthe Redistricting Plans. (Appellants’ App. A, pp.8a-19a.) The court found that Appellants’ expert,Dr. McDonald, "relied on incomplete informationwhen reaching his determination that traditionalrace-neutral principles were subordinated," and"neglected to consider important sources ofinformation in reaching his conclusion." (Id. at 12a.)Particularly troubling for the court was Dr.McDonald’s "admission that he failed to consider theguidelines and criteria that the General Assemblydevised for the redistricting process, which .

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contained guiding race-neutral principles." (Id.)The district court found that Dr. McDonald"neglected to review the prior three judge panel’sdecision in Colleton County Council v. McConnell,201 F. Supp 2d 618 (D.S.C. 2002) even though itcontained a discussion of the traditional race-neutralprinciples that guide South Carolina redistricting."(Id. at 12a-13a.) The failure to consult thisinformation "resulted in his rendering an opinionwithout considering all the race-neutral principlesthat have traditionally guided redistricting in SouthCarolina." (Id. at 13a.)

Likewise, the court found RepresentativeSellers’ testimony to be "insufficient to show thatrace predominated in creating the House andCongressional plans." (Id. at 17a.) The courtdetermined Representative Sellers’ testimony wasreplete with "generalized statements" that thelegislature subordinated traditional race-neutralprinciples to race, "but he never provided anyin-depth explanation as to where or how." (Id.)Moreover, the court found that "[a]t other times,Representative Sellers applauded the GeneralAssembly for abiding by a number of specific race-neutral 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 theBVAP in certain districts and not enough on howtraditional race-neutral principles weresubordinated to race in making those changes," andtherefore Appellants "failed to prove a Fourteenth

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Amendment racial gerrymandering claim." (Id. at18a.)

The panel also concluded that Appellants’Fourteenth Amendment claim was "not abundantly.clear," (Id. at 4a), and found that there was "noconvincing direct evidence indicating that theGeneral Assembly drew the district lines for thepurpose of diluting Plaintiffs’ voting strength." (Id.at 25a.) More importantly, the court determinedthat Appellants "failed to prove a discriminatoryeffect." (Id. at 26a.) The court also found thatalthough Dr. McDonald "asserted that certaindistricts in the plans contain a higher BVAP thannecessary to elect a representative of choice . . . thatdoes not demonstrate dilution" because Dr.McDonald failed to "provide any testimony about therelative voting strength of the allegedly packedAfrican-American voters if they had been placed inanother district." (Id.) Additionally, the courtconcluded that, "[a]lthough [Appellants] offeredalternative plans, they did not provide any analysisor explanation demonstrating how their plans showthat the House and Congressional plans diluteminority votes ... [or] ... minimized or cancel~ outminority voting potential." (Id.) At bottom, thecourt held that Appellants failed to prove that racewas the predominant factor in creating the Houseand Congressional plans.

Finally, with respect to standing, the courtrelied on United States v. Hays, 515 U.S. 737 (1995),to hold that Appellants "failed to introduce specificevidence that they have personally been subjected toa racial classification." (Id. at 8a.) Therefore, in

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assessing the evidence as it related to Appellants’Fourteenth Amendment racial gerrymanderingclaim, the court considered "only those districts inwhich a Plaintiff resides," (id.) effectively dismissingthe Fourteenth Amendment claims by thoseplaintiffs who did not reside in a challenged districtfor lack of standing.

ARGUMENT

The questions presented by Appellants are thesame as those that have been addressed andanswered by the Court in numerous redistrictingdecisions over the years. No different result iswarranted here. Although the issues have beenpresented and decided in other cases, Appellants’argument that any use of race as a factor requiresshifting the burden of proof appears in the presentcase for the first time on appeal to this Court.Appellants never presented that argument to thedistrict court and their failure to do so precludestheir raising it on appeal to this Court.

The putative argument is that when race is afactor in developing a redistricting plan, the Statemust justify its use by proving either the absence ofdiscrimination in crafting the plan or presence of acompelling interest justifying any discriminatoryeffect. This "race is a factor" argument is erroneous,and the burden clearly is not shifted to Respondentsin this case. As correctly noted by the district court,a redistricting scheme will be subjected to strictscrutiny and the burden shifted to the State to provethat the plan is narrowly tailored to achieve acompelling governmental interest only when a

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plaintiff proves that the legislature subordinatedtraditional race-neutral principles in favor of usingrace 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 thatAppellants failed to present any evidence either thatrace predominated over traditional redistrictingcriteria in the plans, or that the General Assembly’sredistricting efforts were discriminatory or had thepurpose or effect of diluting minority votingstrength. Even so, the court recognized that, incrafting a statewide redistricting plan, compliancewith Section 2 of the VRA, including Bartlett v.Strickland, 556 U.S. 1 (2009), is a compelling stateinterest,s

Appellants also ask this Court to reverse asubstantial body of case law in order to grantAppellants standing to assert a statewide racialgerrymandering claim, as opposed to the specificdistricts in which they reside. Appellants made noshowing that they personally were denied equalprotection of the laws, but only asserted the exact

Although Plaintiffs’ jurisdictional statementgenerically claims that "biracial coalitions of whites and blackselected minority-preferred black candidates between 2003 and2010," (J.S. 4), as discussed above, Appellants have limited theissues to be considered by this Court to a FourteenthAmendment racial gerrymandering claim and standing.Therefore, Appellants have abandoned any claim thatRespondents either impermissibly destroyed or failed to createcoalition districts. Notwithstanding, although Appellantsexpressly avoid any discussion of Bartlett in their JurisdictionalStatement, Respondents’ efforts to comply with therequirements of Section 2 remain relevant because they operateto reject Appellants’ other surviving claims.

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same generalized grievance addressed by this Courtin United States v. Hays, 515 U.S. 737 (1995).Accordingly, the district court determined thatAppellants have failed to introduce specific evidencethat they were personally subjected to a racialclassification and appropriately declined to considerracial gerrymandering claims against districts inwhich a plaintiff did not reside.

In sum, this Court’s prior holdings directlyforeclose each of Appellants’ claims and Appellantshave not presented adequate or compelling groundsfor this Court to revisit these issues. Instead,Appellants failed to make the requisite evidentiaryshowing below and merely implore this Court foranother bite at the apple. Because Appellants failedto both meet their burden below and cannotdemonstrate any error of the decision reached by thethree-judge panel, this matter should be dismissedor, in the alternative, the judgment below should beaffirmed.

Aside From Being Procedurally Barred,Appellants’ Fourteenth AmendmentClaims Fail as a Matter of Law and areUnsupported by the Record.

Appellants argue that "[t]he lower courtmisunderstood this Court’s ’predominant factor’ lineof cases" (J.S. 24), and assert that race can be afactor in redistricting only when the VRA explicitlyrequires it. (J.S. 17-18.) This argument fails forseveral reasons. First, Appellants never presentedthis issue to the district court, instead relying uponthe argument that race was the predominant factor.

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Second, Appellants employ the wrong test andmisstate the level of proof required in a FourteenthAmendment gerrymandering case to shift theburden to the defendants. Third, Appellantsattempt to weave in arguments and standardsrelated to vote dilution and other discriminationclaims even when the only claim before this Court isspecifically limited to racial gerrymandering.Fourth, as recognized by the court below, Appellants’racial gerrymandering claims necessarily failbecause Appellants neither presented specificevidence that demonstrated they were personallysubjected to a racial classification, nor establishedthat race was the predominant factor in either theHouse or Congressional redistricting plans.(Appellants’ App. 4a-19a.) Similarly, the courtrejected Appellants’ vote-dilution claims becauseAppellants were unable to prove either adiscriminatory purpose or discriminatory effect. (Id.at 23a). Therefore, regardless of what level of proofis actually required to invoke strict scrutiny,Appellants fail to demonstrate how the evidence theyactually introduced at the trial was sufficient to shiftthe burden.

Appellants did not raise the "raceis a factor" argument below.

Appellants argue for the first time on appealthat the presence of race as a factor--not thepredominant factor--shifts the burden of proof to theState. Appellants did not raise that issue in theAmended Complaint. (Resp’ts’ App. p. 179a, ¶ 2)(complaining about "race-based redistrictingschemes that use race as the predominant factor in

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drawing election district boundaries.") The courtonly analyzed the issues based on the allegationsactually made--that the General Assembly used raceas the predominant factor in drawing the plans, (SeeJ.S. pp. 8a-19a (discussing Plaintiffs’ failure to proverace was the predominant factor in the legislature’sdistricting decisions))--and the existing precedent ofthis Court. Appellants’ argument should not beconsidered by this Court. E.g., Gonzales v. Duenas-Alvarez, 549 U.S. 183, 194 (2007) ("[T]he lower courtdid not consider the claims, and we decline to reachthem in the first instance."); Nat’l Collegiate AthleticAss’n v. Smith, 525 U.S. 459, 470 (1999) ("[W]e donot decide in the first instance issues not decidedbelow.").

Appellants misstate their burden ofproof.

As recognized by the district court, a partychallenging election redistricting can bring two typesof Fourteenth Amendment equal protection claims:(1) a racial gerrymandering claim, or (2) a votedilution claim. (Appellants’ App. A, p. 5a.)"Whereas a vote dilution claim alleges that the Statehas enacted a particular voting scheme as apurposeful device to minimize or cancel out thevoting potential of racial or ethnic minorities, anaction disadvantaging voters of a particular race, theessence of the equal protection claim recognized inShaw is that the State has used race as a basis forseparating voters into districts." Miller, 515 U.S. at911 (internal quotations and citations omitted).

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To establish a gerrymandering claim underthe Equal Protection Clause, a plaintiff has the highburden of proving that the legislature’s motive "waspredominantly 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 Heightsv. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)).Additionally, a plaintiff also is always required toprove that the legislature subordinated traditionalrace-neutral principles, such as compactness,contiguity, maintaining cores of districts, andrespect for political subdivisions or communities ofinterest, to race when drawing district boundaries.See Bush v. Vera, 517 U.S. 952,959 (1996).However, "[w]here these or otherrace-neutralconsiderations are the basis for redistrictinglegislation, and are not subordinated to race, a statecan defeat a claim that a district has beengerrymandered on racial lines." Miller, 515 at 915-16. Therefore, a racial gerrymandering claimrequires proof that the legislature used race as thepredominant factor in drawing election districts andsubordinated traditional race-neutral principles torace as the primary consideration for drawingdistrict lines. (Id. at 915.)

In contrast, the "essence of a vote dilutionclaim under the Fourteenth Amendment is that theState has enacted a particular voting scheme as apurposeful device to minimize or cancel out thevoting 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

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discriminatory purpose on the part of the legislatureenacting the plan and a discriminatory effect on theracial minority’s voting potential. Washington v.Finlay, 664 F.2d 913, 920 (4th Cir. 1981).

With these requirements in mind, the districtcourt correctly used the test set forth in Miller forFourteenth Amendment gerrymandering claims:only when a plaintiff shows, "either throughcircumstantial evidence of a district’s shape anddemographics or more direct evidence going tolegislative purpose, that race was the predominantfactor motivating the legislature’s decision to place asignificant number of voters within or without aparticular district," will the State be required to"demonstrate that its districting legislation isnarrowly tailored to achieve a compelling interest.Miller, 515 U.S. at 916, 920. (See also, Appellants’App. A, p. 6a.)

However, Appellants support their novelstandard that using race as a factor shifts theburden to the state by conflating standards andcases that are relevant to vote dilution cases or otherrace-based claims with those pertaining toFourteenthAmendment equal protection claimsgenerally, and to their gerrymandering claimspecifically. Consequently, they incorrectly reachthe conclusion that if race is a factor in aredistricting plan, it is necessarily discriminatoryand the burden then shifts to the state to prove thatits consideration of race was for a remedialjustification or that the plan has a race-neutralpurpose. In order to do so, Appellants rely heavilyon this Court’s opinions in Village of Arlington

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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 supporttheir contention that the district court used thewrong standard. These vote dilution cases do notsupport Appellants’ arguments; however, andAppellants never articulate why those cases shouldapply to the facts of this case instead of the carefullyoutlined and repeatedly cited "predominant factor"test used in gerrymandering cases.

For example, in Arlington Heights, this Courtheld that in order to establish a FourteenthAmendment violation; a plaintiff need not prove thatthe challenged action was motivated solely by apurpose to discriminate. Under the principles of Mt.Healthy (decided the same day as Arlington Heights),if a plaintiff is able to show that a discriminatorypurpose was a motivating factor in the redistrictingprocess, the burden shifts to the defendant todemonstrate that the same redistricting would haveoccurred even if a discriminatory purpose had notmotivated the defendant. Mt. Healthy, 429 U.S. at287° Thus, the Arlington Heights/Mt. Healthyframework involves the following analytical stepswhen evaluating a vote dilution claim. First, aplaintiff must establish a prima facie case ofpurposeful vote dilution. Arlington Heights, 429U.S. at 265-66. Second, assuming a plaintiff canmake such a showing, the burden shifts to thedefendant to establish that the redistricting inquestion would have occurred even absent thealleged purpose to dilute minority voting strength.Id. at 271 n.21 ("Proof that the decision by the

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[defendant] was motivated in part by a raciallydiscriminatory purpose would not necessarily haverequired invalidation of the challenged decision.Such proof would, however, have shifted to the[defendant] the burden of establishing that the samedecision would have resulted even had theimpermissible purpose not been considered.").

These cases are inapplicable because they areconfined to vote dilution claims, which are notpresent in the pending case. Moreover, under theCourt’s framework, the burden does not shift unlessand until it is shown that a decision was motivatedat least in part by a racially discriminatory purpose.In the present case, Appellants failed to show thatrace was the "dominant," "primary," or even a"motivating" factor. Thus, even assuming arguendothat the vote dilution burden shifting standard isapplicable to Appellants’ gerrymandering claims inthis case, Appellants have failed to meet thestandard discussed above.

Appellants’ convoluted proposal also ignoresthis Court’s acknowledgement that "[r]edistrictinglegislatures will almost always be aware of racialdemographics; but it does not follow that racepredominates in the redistricting process." Miller,515 U.S. at 916 (emphasis added).In fact,"redistricting differs from other kindsof statedecisionmaking in that the legislaturealways isaware of race when it draws district lines, just as itis aware of age, economic status, religious andpolitical persuasion, and a variety of otherdemographic factors." Shaw, 509 U.S. at 646.However, "[t]hat sort of race consciousness does not

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lead inevitably to impermissible racediscrimination."9 Id. Consequently, "[s]trictscrutiny does not apply merely because redistrictingis performed with consciousness of race." Vera, 517U.S. at 965. Instead, a racial gerrymandering equalprotection violation exists only when the evidenceestablishes that "traditional redistricting principleshave been subordinated to race," and strict scrutinyapplies only when race is the "dominant andcontrolling" consideration in drawing district lines.10

Miller, 515 U.S. at 913, 916. Only after a plaintiffhas established that race was the predominantfactor in drafting a redistricting plan will strictscrutiny apply and require the state to show that theredistricting plan at issue is narrowly tailored tomeet 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 ifrace is otherwise used as even a consideration, the burdenshifts to the defendants to justify its use. (J.S. 17-18.)However, because South Carolina is required under Section 5 ofthe VRA to submit its reapportionment plans to the DOJ forpreclearance; thus, race always must be considered in an effortto avoid retrogression. Consideration of race does not equate toa conclusion that race predominated merely because thelegislature had an awareness of race. Miller, 515 U.S. at 916.

10 If the threshold was to show only that race was "a

factor," there would be no purpose served by the Court’s rulingsabout race being a "predominant factor." This Court stated inEasIey v. Cromartie that "It[ace must not simply have been amotivation . . but the predominant factor motivating thelegislature’s districting decision." 532 U.S. 234, 241 (2001)(internal citations omitted). This predominant factor discussionwould be meaningless if a plaintiff only had to show race was afactor.

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As a covered jurisdiction under the VRA, "It]heGeneral Assembly had to consider race to createdistricts that complied with federal law .... ,’11(Appellants’ App. A., pp. 18a-19a.) However, thecourt was "satisfied that the General Assembly didnot overly rely on race in a manner that runs afoul ofthe Fourteenth Amendment." (Id.) Appellants failedto demonstrate intentional discrimination on thepart of the General Assembly or otherwisedemonstrate that race predominated in the drawingof the House plan. See Miller, 515 U.S. at 915("Although race-based decision-making is inherentlysuspect, until a claimant makes a showing sufficientto support that allegation the good faith of a statelegislature must be presumed.")

Appellants’ reasoning fails to recognizes "thecomplex interplay of forces that enter a legislature’sredistricting calculus," and that "the distinctionbetween being aware of racial considerations andbeing motivated by them may be difficult to make."Id. at 915-16. Under Appellants’ theory, plaintiffsmerely would need to allege that race was a factorconsidered by the State--which it always is--inorder to shift the burden to the state to prove thatrace was used for a remedial purpose or that theplan has a race-neutral purpose. The burden ofproof would never lie with the claimant and stateswould face the burden of having to defend almost

n The South Carolina House specifically adopted

guidelines and criteria that required compliance with UnitedStates Supreme Court decisions and the VRA. (Appellants’App. A, p. 9a.) Although Appellants alleged that the GeneralA~sembly improperly engaged in "packing" certain districts,contending that they should have been maintained as crossoverdistricts, Appellants have abandoned this issue on appeal.

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every redistricting action, even if the plaintiffproduces nothing more than bare allegations.Appellants’ claims of error are incorrect as a matterof law, unreasonable and unworkable in theirproposed application and therefore, do not bearconsideration by this Court.

C. Appellants failed to demonstraterace was the predominant factor.

Appellants failed to present any evidence thatwould support their Fourteenth Amendment racialgerrymandering claims. As the district court noted,"Plaintiffs may prove that race was the predominantconsideration in a variety of ways," includingoffering circumstantial evidence of a district’s shapeand demographics. (Appellants’ App. A, p. 6a.) Forexample, Appellants could have shown that theredistricting plans were "so extremely irregular on[their] face that [the plans] rationally can be viewedonly as an effort to segregate the races for purposesof voting." Vera, 517 U.S. at 958 (internal quotationsand citations omitted). Alternatively, they couldhave offered direct evidence of a discriminatorylegislative purpose. Miller, 515 U.S. at 916.12Instead, Appellants did neither.

The record is devoid of any evidencedemonstrating race predominated in the

12 Appellants claim that because this is a "mixed-

motive" case, a different standard should apply. (J.S. 24.)Even if this is a "mixed motive" case, the Miller~Shawframework still applies. See Vera, 517 U.S. at 958-59.

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redistricting process.13 At most, Appellants’evidence shows that race was merely a factorconsidered by the General Assembly during theredistricting process, which, in a FourteenthAmendment racial gerrymandering claim, isinsufficient to shift the burden to the state to defendthe plan.

At trial, Appellants relied primarily on thetestimony of Representative Sellers and Dr.McDonald’s review of the geographic anddemographic data of the plan to argue that race wasthe predominant factor. The record reflects,however, that race was but one factor consideredalong with many other traditional redistrictingprinciples. The district court was unconvinced byAppellants’ evidence and concluded that Appellantshad failed to show that the legislature subordinatedtraditional race-neutral redistricting principles torace; or that the redrawn lines were so bizarre thatthe only explanation for their boundaries are racialconsiderations; or that there was a legislativepurpose to consider race as the predominant factor.

1. Representative Sellers andother legislators.

The district court held Appellants’ evidencefailed 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" toconduct a trial largely consisting of affidavit testimony. (Id. at123~124.)

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considered by the General Assembly in drawing thedistrict lines. Appellants relied on affidavits ofseveral legislators and oral testimony fromRepresentative Sellers to show that the legislaturehad an intentional discriminatory purpose. Theaffidavits did "not offer any convincing proof’ that afocus on race by the legislature was the predominantreason for the elevated BVAP. (Appellants’ App. A,p. 15a.)

Representative Sellers initially insisted racewas the "predominant", if not "the only factor"considered by theGeneral Assembly in theredistricting process.(Id. at 16a.) RepresentativeSellers’ testimonywas dismantled on cross-examination when he was unable to identify anydistrict that was not contiguous or compact, andconceded that all communities of interest wereaddressed and difficult but reasonable efforts weremade to ensure that incumbent legislators remainedin their current districts. (Resp’ts’ App. pp. 36a-39a,43a, 45a-47a.) Representative Sellers furthertestified that the districting plans complied with theUnited States Constitution, the VRA, and populationcriteria (Id. at 28a, 30a, 31a.) In fact,Representative Sellers commended the election lawsubcommittee for its efforts to take public input intoaccount and for "making sure that the process wassound." (Id. at 50a.)

2. Dr. McDonald.

Dr. McDonald also testified race was apredominant factor in the drawing of the districtlines, but admitted he failed to consider a great deal

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of the relevant information available to him. Indeveloping his analysis as to whether districts "werepacked," Dr. McDonald failed to consider thecomplete House record of the redistricting process,(Resp’ts’ App. p. 4a), the audio tapes of the electionlaw subcommittee, newspaper articles, (Id. at 5a-6a),the pre-existing precinct lines, or the GeneralAssembly’s redistricting guidelines and criteriaadopted and followed by the House in developing itsplan. (Id. at 7a-12a.)14

Dr. McDonald did not present an alternativeplan that would maintain core constituencies betterthan the House plan. (Id. at 14a.) He testified theplan passed by the House keeps more counties wholethan would the Appellants’ plan. (Id. at 16a-17a.)He conceded the House plan made communities ofinterest whole without considering race as a factor.(Id. at 13a.) Appellants relied on Dr. McDonald toattempt to prove that the district shapes in theredistricting plan were so irregular that race was theonly possible explanation. He only performed avisual determination of compactness and did notconsider any other pre-existing political subdivisionboundaries. (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) respectingpolitical boundaries; and (4) keeping incumbents’ residences indistricts with their core constituencies. Id. at 647.

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The court’s estimation of theevidence.

After considering this evidence, the courtconcluded that Appellants "failed to prove anylegislative purpose that indicates race was thepredominant factor." (Appellants’ App. A, p. 15a.)The court recognized that Representative Sellers’testimony failed to go beyond general beliefs and didnot contain a specific explanation as to how andwhen the legislature as a whole subordinated race-neutral criteria to race in approving the redistrictingplan. (Id. at 17a-18a.) Accordingly, the court foundthat Representative Sellers testimony was"insufficient to show that race predominated increating the House and Congressional plans." (Id. at17a.)

Furthermore, the district court found that Dr.McDonald, who considered only demographics andgeography data, "was unable to provide the Court areliable opinion that the General Assemblysubordinated traditional race-neutral principles torace." (Id. at 14a.) The court recognized that theSouth Carolina House of Representatives proposed,debated, and adopted guidelines and criteria to beused in redistricting the Congressional and Housedistricts. (Id. at 15a-18a.) The House considered notonly the Redistricting Plans’ compliance with theUnited States Constitution and the VRA, but alsoachieving equal population for the districts,contiguity, compactness, maintenance ofcommunities of interest, and incumbency protection.

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After considering this evidence, the districtcourt concluded that Appellants "failed to prove anylegislative purpose that indicates race was thepredominant factor." (Id. at 15a.) The court alsodetermined that Appellants"failed to proveintentional discrimination [or] demonstratedthat the General Assembly intended to pack African-American voters into districts to prevent the creationof crossover districts. (Id. at 23a.) Instead, thedistrict court found that Respondents’ race-neutralexplanations of county lines, existing districtboundaries, and census bloc lines were moreconvincing evidence. (Id. at 15a-18a.)

Because Appellants never presented sufficientevidence to demonstrate that race predominatedover race-neutral redistricting criteria, they failed tomeet their burden of proof.

4. Summary.

The district court analyzed each specific itemof evidence offered by the Appellants and explainedits reasons for finding that the evidence presentedwas insufficient to meet the burden of proof. Just asthey did in the trial, Appellants again fail in theirJurisdictional Statement to explain how the evidencethey offered is sufficient to prove that the GeneralAssembly improperly considered race in drawing andadopting the redistricting plan.

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II. Plaintiffs Lack Standing Under UnitedStates v. Hays.

Appellants’ entire standing argument hingesupon a mistaken reading of this Court’s racialgerrymandering decisions. This Court has held that"a district created solely to effectuate theperceived common interests of one racial group"renders it more likely that officials elected from thatdistrict will "believe that their primary obligation isto represent only the members of that group, ratherthan their constituency as a whole.’’15 Shaw, 509U.S. at 643. Thus, a racially gerrymandered districtmay cause resident voters to "suffer . . . specialrepresentational harms" as a result of the wrongfulracial classification. United States v. Hays, 515 U.S.737, 744-45 (1995). In contrast, voters who do notreside in a racially gerrymandered district do notindividually suffer these same "representationalharms" and may not raise a racial gerrymanderingclaim absent specific evidence showing that theyhave "personally been subjected to a racialclassification.’’1~ Id. at 745. This is true even if thevoter resides in a district directly adjacent to theallegedly gerrymandered district. Id. at 746; see alsoSinkfield v. Kelley, 531 U.S. 28, 30-31 (2000) (percuriam) (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’racialgerrymandering claims, not their vote dilution claims.

16 A racial gerrymandering challenge brought against

a district in which the voter does not reside is "only ageneralized grievance against government conduct of which heor she does not approve." Hays, 515 U.S. at 745.

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boundaries of majority-minority districts necessarilyinvolves an unconstitutional use of race in drawingthe boundaries of neighboring majority-whitedistricts"). Simply put, voters have standing tochallenge a district as racially gerrymandered only ifthey reside in that district because they otherwisehave not suffered the necessary individualizedrepresentational harm. See Lujan v. Defenders ofWildlife, 504 U.S. 555, 560-61 (1992).

Notwithstanding this Court’s precedent andthe underlying analysis of these decisions--correctlyapplied by the district court--Appellants challengenumerous districts across the state as being raciallygerrymandered, including specific challenges todistricts in which none of them resides. To avoid thestanding requirements of Hays, Appellantscharacterize their alleged injury as "being subjectedto a state-wide system of racially segregateddistricts, not the "representational harm,"identified in Hays." (J.S. 29 (emphasis added).)But Appellants actually did not challenge everydistrict as racially gerrymandered, only certainones.17 Moreover, in Hays, this Court rejected theclaim that challenging districting legislation as awhole confers standing on a plaintiff to bring astatewide racial gerrymandering claim, holdinginstead that even if redistricting legislation allegedlyinjures some voters through race-basedclassification, that does not mean "that every . . .voter has standing to challenge [the plan] as a racial

17 Appellants challenged as racially gerrymandered

House districts 12, 23, 25, 49, 55, 61, 64, 66, 70, 79, 82, 93, 102,103, 111, 121, and 122 and Congressional district 6.

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classification." Hays, 515 U.S. at 746. Appellants’reference to this Court’s partisan gerrymanderingcases provides no support for their argumentbecause statewide political gerrymandering claimsare non-justiciable. Vieth v. Jubelirer, 541 U.S. 267,292 (2004).is This holding is consistent with Haysbecause the same representational harm is at issuein both partisan and racial gerrymandering cases.Id. at 308 (emphasis added); see also id. at 317(Kennedy, J., concurring) (discussingrepresentational rights); id. at 330 (Stevens, J.,dissenting) (same).; see also League of United LatinAm. Citizens v. Perry, 548 U.S. 399, 418 (2006)(Kennedy, J., separate opinion) (rejecting plaintiffstheory because it did not "show the burden, asmeasured by a reliable standard, on thecomplainant’s representational rights").19 For allthese reasons, Appellants’ contention that their"residence in a specific district is immaterial tostanding," (J.S. 30), is incorrect and the district courtcorrectly ruled that the plaintiffs had standing to

is Although four members of the Court in Vieth applied

a political-question analysis to reject adjudication of anygerrymandering claims, including statewide ones, JusticeStevens’ dissent applied the standing analysis of Hays toconclude that plaintiffs must reside in a district to challenge itas gerrymandered, regardless of whether the challenge is racialor political in nature. Vieth, 541 U.S. at 328 (Stevens, J.,dissenting).

19 Appellants assert that "the state’s own expert

suggested" that the "General Assembly used race as a proxy forparty affiliation." (J.S.p. 21.) Dr. Brunell made the commonsense point recognized in Easley v. Cromartie, 532 U.S. 234(2001) that where race and politics correlate and a districtingdecision has both a racial and a political effect, one cannotassume that the decision was racially motivated.

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challenge as racially gerrymandered only thosedistricts in which at least one of them resided.

Appellants finally contend that even if Haysapplies to restrict their standing to districts ofresidence, they should have been permitted tointroduce evidence regarding the legislature’sallegedly "racially discriminatory purpose regardingall districts in South Carolina [as] relevantcircumstantial evidence." (J.S. 31.) There are twoprimary problems with this assertion. First,Appellants introduced evidence by stipulationregarding all of the districts that they alleged to beracially gerrymandered and there is no reason tobelieve that the district court did not consider thatevidence. The court recognized the testimonypresented by one representative "strongly suggestedthat race was a factor in drawing many districtslines," although the court correctly concluded thatthe testimony "failed to demonstrate that racepredominated over traditional race neutralprinciples in the districts in which Plaintiffs’ reside."(Appellants’ App. A, p. 18a.) The court did statethat, "in assessing Plaintiffs’ evidence as it related totheir Fourteenth Amendment racial gerrymanderingclaim, the Court will consider only those districts inwhich a Plaintiff resides." (Id. at 8a.) However, thisstatement reflects the district court’s accuratedetermination that it could adjudicate plaintiffs’racial gerrymandering claims only with respect tothe districts in which one of them resided, ratherthan an acknowledgement that the court did notevaluate evidence pertaining to other districts. Inshort, Appellants’ argument amounts to a complaint

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that the district court must not have considered allof their evidence because it did not agree with them.

Nonetheless, even assuming, arguendo, thatAppellants’ evidence about non-resident districtswas not considered, the district court did not err.This Court has held that allegations about oneallegedly racially gerrymandered district do "notprove anything" with respect to a neighboringdistrict. Sinkfield, 531 U.S. at 30-31 (quoting Hays,515 U.S. at 746). If Appellants cannot prove a racialgerrymandering claim based on allegations aboutdistricts directly adjacent to their districts ofresidence, they certainly cannot prove that claimbased on allegations about non-adjacent districtswhich, in some cases, are on the other side of thestate. Appellants’ citation to Keyes v. School Dist.No. 1, Denver, 413 U.S. 189 (1973), does not savetheir argument because--aside from the fact thatthe case does not involve redistricting--the Courtheld that a finding of intentional discrimination inone area of a school district is probative of "theschool authorities’ intent with respect to other partsof the same school system." Keyes, 413 U.S. at 207(emphasis added). By its plain language, the Court’sholding is that evidence about one school district isnot probative of discrimination in a different schooldistrict, which is completely contrary to theextension suggested by the Appellants in order tosubstantiate their arguments. Contrary toAppellants’ arguments, Keyes therefore supports theanalytical framework established by Sinkfield andHays. Sinkfield, 531 U.S. at 30-31; Hays, 515 U.S. at746.

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Under any view of the proceedings below,Appellants are not entitled to relief on the basis thatthey had standing to challenge the statewideredistricting plan as a whole. The decision of thedistrict court should be summarily affirmed andAppellants’ appeal should be dismissed.

CONCLUSION

For the reasons set forth above, this Courtshould dismiss this appeal or summarily affirm thedecision of the district court below.

Respectfully submitted,

Robert E. SteppCounsel of Record

Robert E. Tyson, Jr.SOWELL GRAY

STEPP & LAFFITTE, LLC1310 Gadsden StreetPost Office Box 11449Columbia, South Carolina 29201803.929.1400rstepp@sowellgray.com

--and--

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Benjamin P. MustianTracey C. GreenWILLOUGHBY & HOEFER, P.A.930 Richland StreetPost Office Box 8416Columbia, South Carolina 29202803.252.3300

July 20, 2012