Case 3:13-cv-00678-REP-LO-AD Document 166 Filed 05/11/15 Page 1 of 10 PageID# 4549

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION

DAWN CURRY PAGE, et al.,
Plaintiffs,
THE VIRGINIA STATE CONFERENCE
OF NAACP BRANCHES,

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Plaintiff-Intevenor,
v.

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VIRGINIA STATE BOARD
OF ELECTIONS, et al.,
Defendants.

Civil Action No. 3:13cv678

CORRECTED COMPLAINT IN INTERVENTION OF THE VIRGINIA STATE
CONFERENCE
OF NAACP BRANCHES
The Virginia State Conference of NAACP Branches (“Plaintiff”) hereby intervenes in
this action and brings this complaint against Defendants. Plaintiff seeks declaratory and
injunctive relief and alleges as follows:
NATURE OF ACTION
1.

This action is brought pursuant to 42 U.S.C. § 1983 to secure declaratory relief

for Defendants’ unlawful deprivation of Plaintiff’s rights, privileges, and immunities guaranteed
by the Fourteenth Amendment to the Constitution and the laws of the United States.
2.

Plaintiff is a not-for-profit organization that provides support and advocacy for its

members, people of color in the Commonwealth of Virginia—voters who were unnecessarily
packed via the racial gerrymander of Virginia’s Congressional District 3 in violation of the Equal

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Protection Clause of the Fourteenth Amendment. Congressional District 3 packs AfricanAmerican voters into a single district, thereby diminishing their influence and opportunity to
participate in the political process in surrounding districts. Drawn with race as its predominant
purpose, and no longer justified by Section 5 of the Voting Rights Act of 1965, see Shelby
County v. Holder, 570 U.S. __, 133 S. Ct. 2612 (2013), Congressional District 3 cannot pass
constitutional muster.
3.

To protect itself, its members, and thousands of Virginians like them from being

classified solely on the basis of race in violation of the Equal Protection Clause of the Fourteenth
Amendment, Plaintiff seeks a declaration that Virginia’s Congressional District 3 is invalid and
an injunction prohibiting Defendants from calling, holding, supervising, or taking any action
with respect to Congressional elections based on Congressional District 3 as it currently stands.
PARTIES
4.

The Virginia NAACP is a membership organization and part of the national

NAACP, the oldest and largest civil rights organization in the United States. The Virginia
NAACP, headquartered in Richmond, VA, has over one hundred statewide units, including
members in Richmond, Petersburg, Norfolk, and Virginia Beach. The Virginia NAACP has
approximately 16,000 members statewide. It has members throughout Congressional District 3,
in every congressional district adjacent to Congressional District 3 (including districts 1, 2, 4,
and 7), and across the state. One of the priorities of the Virginia NAACP is to advance and
defend the voting rights of its members, including the right to be free from racial discrimination
in voting and to elect candidates of their choosing at every political level.

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5.

Defendants James B. Alcorn, Clara Belle Wheeler, and Singleton B. McAllister,

are sued in their respective official capacities as Chairman, Vice-Chair, and Secretary of the
Virginia State Board of Elections.
JURISDICTION AND VENUE
6.

This Court has jurisdiction to hear Plaintiff’s claim pursuant to 42 U.S.C. §§ 1983

and 1988, and 28 U.S.C. §§ 1331, 1343(a)(3), and 1357. This Court has jurisdiction to grant
declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202.
7.

Venue is proper under 28 U.S.C. § 1391(b).
FACTUAL ALLEGATIONS

8.

The existing districts that elect Virginia’s eleven members of Congress were

passed on January 20, 2012. Va. Code Ann. § 24.2-302.2 (hereinafter “2012 Congressional
Plan”).
9.

The 2010 decennial census data for Virginia was released by the Census Bureau

on February 3, 2011, during the General Assembly’s regular 2011 session. The General
Assembly had not adopted a new congressional district plan before that legislative session ended.
On February 27, 2011, the Governor of Virginia called for a special session to address
redistricting.
10.

The Virginia General Assembly failed to adopt a new congressional redistricting

plan in the General Assembly’s 2011 Special Session.
11.

After the November 2011 elections for the Virginia General Assembly,

Republicans maintained their majority in the Virginia House of Delegates and Democrats lost
their majority in the Virginia Senate.

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12.

On January 12, 2012—one day after the General Assembly’s 2012 Session

began—the Virginia House of Delegates passed HB 251, which proposed new congressional
districts for Virginia. That same day, the Virginia Senate also approved HB 251.
13.

Virginia Governor Bob McDonnell signed HB 251 into law on January 25, 2012.

14.

HB 251 was codified as Va. Code Ann. § 24.2-302.2.

15.

Congressional District 3 is located in southeastern Virginia. It includes portions

of Richmond, Petersburg, Newport News, and Norfolk. Parts of the district are non-contiguous,
being separated by the James River and Chesapeake Bay.
16.

A similar version of Congressional District 3 has existed since 1991, when the

Virginia General Assembly adopted new congressional districts in light of the 1990 Census.
17.

In 1997, a three-judge federal court concluded the version of Congressional

District 3 drawn in 1991 was the result of unconstitutional racial gerrymandering. See Moon v.
Meadows, 952 F. Supp. 1141, 1150 (E.D. Va. 1997), aff’d, 521 U.S. 1113 (1997).
18.

On July 10, 2001, the Virginia General Assembly enacted a new congressional

plan based on the 2000 Census. The 2001 version of Congressional District 3 was similar to its
predecessor.
19.

At the time of the 2010 Census, the 2001 version of Congressional District 3 had

an African-American voting age population of 53.1%. In the 2012 Congressional Plan, the
African-American voting age population in Congressional District 3 was increased to 56.3%.
20.

The Virginia General Assembly increased the African-American population of

Congressional District 3 by shifting African-American population out of neighboring districts
into Congressional District 3. Congressional District 3 is surrounded by Congressional Districts
1, 2, 4, and 7. At the time of the 2010 Census, former Congressional District 1 had an African-

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American voting age population of 19.6%. In the 2012 Congressional Plan, the AfricanAmerican voting age population decreased to 16.9%. The 2001 version Congressional District 2
had an African-American voting age population of 21.4% in 2010, which decreased to 21.3%
under the current plan. Similarly, the African-American voting age population in Congressional
District 4 decreased from 33.5% to 31.3%, and the African-American voting age population in
Congressional District 7 decreased from 17% to 14.6%. The fact that the African-American
population in each of these districts decreased while the African-American population in
Congressional District 3 increased is evidence that the 2012 Congressional Plan’s packing of
African-American voters in Congressional District 3 was a decision driven primarily by race.
21.

Congressional District 3 is not compact. Congressional District 3 also disregards

key political subdivisions and geographical boundaries and subordinates other traditional
districting principles, including splitting numerous communities of interest along the district.
22.

When the 2012 Congressional Plan was enacted, Virginia was a covered

jurisdiction under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c. Thus, the 2012
Congressional Plan had to be precleared by either the United States Department of Justice or the
United States District Court for the District of Columbia before it could take effect.
23.

On February 2, 2012, the Commonwealth of Virginia submitted its submission

under Section 5 to the United States Department of Justice.
24.

The Commonwealth asserted that it had to move more black voters into

Congressional District 3 in order to “retain[] minority strength in the redrawn Third District
comparable to the minority strength of the [previous] Third District under the 2010 Census.”
25.

On June 25, 2013, the United States Supreme Court struck down as

unconstitutional the coverage formula for Section 5 of the Voting Rights Act, as provided in

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Section 4(b) of the Act. Shelby County v. Holder, 570 U.S. __, 133 S. Ct. 2612 (2013).
Therefore, the Commonwealth of Virginia is no longer a covered jurisdiction and need not meet
preclearance requirements under Section 5.
26.

Upon information and belief, Section 5 preclearance requirements were used as a

justification to pack African-American voters into the non-compact Congressional District 3.
27.

Race was the predominant consideration in the creation of Congressional District

3. No other factor explains the shape of this district, its failure to comply with traditional
districting principles, the high concentration of African-American voters in the district, and the
complete disregard of communities of interest.
28.

The predominant and excessive use of race in drawing Congressional District 3 is

not justified by a compelling state interest.
29.

In particular, in the wake of Shelby County, Section 5 cannot justify the use of

race as a predominant factor in drawing congressional district lines.
30.

Section 5 of the Voting Rights Act did not compel the Commonwealth to

significantly increase the African-American population in Congressional District 3, and did not
compel the drawing of Congressional District 3 as a non-compact district. Section 5 was
intended only to prevent retrogression in the ability of African-American voters to elect their
candidates of choice.
31.

Nor can Section 2 of the Voting Rights Act justify the use of race as a

predominant factor in drawing Congressional District 3. African-American voters in this district
had the opportunity to elect candidates of their choice without increasing their population in the
district from 53.1% to 56.3% of the District’s voting age population.

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32.

Even if there was a compelling state interest to create and maintain Congressional

District 3 with race as the predominant factor, Congressional District 3 is not narrowly tailored to
achieve that interest. There are other viable and constitutionally permissible alternatives to
Congressional District 3.
CAUSE OF ACTION
(Denial of Equal Protection Under the Fourteenth Amendment
of the United States Constitution)
33.

Plaintiff realleges and incorporates by reference, as if fully set forth herein, the

allegations in paragraphs 1-32 above.
34.

The Fourteenth Amendment of the United States Constitution provides in relevant

part: “No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.”
35.

Race was the predominant factor in the creation of Congressional District 3.

36.

The use of race as the predominant factor with respect to Congressional District 3

is not narrowly tailored to advancing a compelling state interest.
37.

Congressional District 3 violates the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution.
38.

Plaintiff has no adequate remedy at law other than the judicial relief sought here.

The failure to temporarily and permanently enjoin the conduct of elections based on
Congressional District 3 will irreparably harm Plaintiff by violating its constitutional rights.
PRAYER FOR RELIEF
Accordingly, Plaintiff respectfully requests that this Court:

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A.

Declare that Congressional District 3 under the 2012 Congressional Plan is a

racial gerrymander in violation of the Equal Protection Clause of the Fourteenth Amendment;
B.

Issue a permanent injunction enjoining Defendants from enforcing or giving any

effect to the boundaries of Congressional District 3 as drawn in the 2012 Congressional Plan,
including an injunction barring Defendants from conducting any elections for the United States
House of Representatives based on Congressional District 3;
C.

Hold hearings, consider briefing and evidence, and otherwise take actions

necessary to determine and order a valid plan for new congressional districts in the
Commonwealth of Virginia; and
D.

Grant such other or further relief the Court deems to be appropriate, including but

not limited to an award of Plaintiff’s attorneys’ fees and reasonable costs.

Respectfully submitted this11th day of May, 2015.

___/s/ David O. Prince_________
David O. Prince, Esquire
VSB # 17044
411 East Franklin Street
Richmond, VA 23219
804-788-4861
princelaw@aol.com

Anita S. Earls (NC State Bar # 15597)
*pro hac vice pending
Allison J. Riggs (NC State Bar # 40028)
*pro hac vice pending
George Eppsteiner (NC State Bar # 42812)
*pro hac vice pending
Southern Coalition for Social Justice
1415 Highway 54, Suite 101
Durham, NC 27707

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Telephone: 919-323-3380 ext. 117
Facsimile: 919-323-3942
E-mail: allison@southerncoalition.org

Attorneys for the Virginia State Conference
of NAACP Branches

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CERTIFICATE OF SERVICE
I hereby certify that on this11th day of May, 2015, a true and correct copy of the
Corrected Complaint in Intervention of the Virginia State Conference of NAACP Branches was
delivered to Plaintiffs and Defendants via the United States District Court, Eastern District of
Virginia, Richmond Division, ECF system.

___/s/ David O. Prince_________
David O. Prince, Esquire
VSB # 17044
411 East Franklin Street
Richmond, VA 23219
804-788-4861
princelaw@aol.com
Attorney for the Virginia State Conference
of NAACP Branches