United States District Court, S.D. Mississippi, Northern Division
JOSEPH THOMAS, et al. PLAINTIFFS
PHIL BRYANT, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE
2018, plaintiffs Joseph Thomas, Vernon Ayers, and Melvin
Lawson filed this suit alleging that the boundaries of
Mississippi Senate District 22 violate § 2 of the Voting
Rights Act. Defendants Governor Phil Bryant, Attorney General
Jim Hood, and Secretary of State Delbert Hosemann deny the
allegation and dispute that any violation can be remedied in
time for the 2019 election. The parties presented evidence at
trial on February 6 and 7, 2019.
February 13, after a thorough review of the evidence and
arguments, the Court advised the parties and the Mississippi
Legislature that the plaintiffs had proven their case. The
Legislature was invited to redraw District 22 prior to
consideration of any judicial remedy. The Court's
findings of fact and conclusions of law are presented below.
Factual and Procedural History
Joseph Thomas is a native of Yazoo City, Mississippi. He is a
banker by profession, a community advocate by avocation, and
in his spare time, a published historian of African-Americans
in Yazoo City and Mississippi.
2003, Thomas turned his attention to public office. He ran
for and won election as Mississippi State Senator for
District 21. The District included Thomas's part of Yazoo
County and predominantly African-American portions of Madison
County, among other places, so its “Black Voting Age
Population” (BVAP) was relatively high. He ran again in
2007 but lost in the primary to another African-American
candidate. Thomas then sat out the 2011 cycle.
decennial redistricting process resulted in changes to the
Senate map in 2012. Thomas's residence wound up in
learned that District 22 now extended into areas of Madison
and Bolivar Counties that ultimately led it to have a BVAP of
only 50.8%. He was concerned that although technically a
majority, such a low BVAP would negatively impact
African-Americans' ability to elect their candidate of
choice. After all, in District 22, African-Americans'
candidate of choice had lost in the 2003, 2007, and 2011
contacted the U.S. Department of Justice and urged it to
reject the new boundaries. He was not successful. DOJ
precleared the plan in September 2012.
2015, Thomas decided to throw his hat in the ring. He ran in
District 22 against Eugene “Buck” Clarke, the
incumbent chairman of the Senate Appropriations Committee.
Thomas thought it would be an uphill battle, but “ran
hard” and spent “quite a bit” of his own
money, he testified. He lost 54% to 46%. Thomas says he was
“real disappointed” that his outreach to the
majority-white precincts in Madison and Bolivar Counties had
not garnered more votes.
did not file a Voting Rights Act lawsuit in 2015, 2016, or
2017. He testified that he was unaware that an individual
could file a § 2 suit until he had a conversation with
one of the attorneys in this case in summer 2018. This suit
was filed several weeks later.
Melvin Lawson is also a voter in District 22. He has worked
and volunteered for political campaigns, including his
brother's campaign for Bolivar County Supervisor and
Thomas's Senate campaign. Through this experience Lawson
found that it is more difficult to get Delta voters to the
polls in odd-numbered election years, i.e., years
without Congressional and Presidential races, because in
odd-numbered years there are fewer transportation options
available on Election Day.
2018, Lawson overheard concerned citizens talking about
District 22. Weeks later he ran into attorney Ellis Turnage,
co-counsel for the plaintiffs in this action, who told him
about this suit. Lawson was interested and joined as a
little about plaintiff Vernon Ayers other than this: he is a
registered voter in District 22. Neither side has elaborated
on his situation.
plaintiff is African-American.
Governor Phil Bryant, Attorney General Jim Hood, and
Secretary of State Delbert Hosemann constitute the State
Board of Election Commissioners. All three are sued in their
22 is the second-largest Senate District in Mississippi,
encompassing 2, 166 square miles and spanning more than 100
miles from tip to toe. It begins in Bolivar County, runs
through Washington, Humphreys, Sharkey, and Yazoo Counties,
and finds its end in Madison County. The District looks like
District 22 lies in the heart of the Mississippi Delta, the
unique alluvial plain occupying the northwest quadrant of the
state. The Delta is impossible to completely define, but my
colleagues' description from 1982 is a good start:
The Mississippi Delta consists of 19 Delta and part-Delta
contiguous counties as follows: Bolivar, Carroll, Coahoma,
DeSoto, Grenada, Holmes, Humphreys, Issaquena, Leflore,
Panola, Quitman, Sharkey, Sunflower, Tallahatchie, Tate,
Tunica, Warren, Washington, and Yazoo. This is a distinct
geographical area of the state traditionally featuring an
agricultural economy concerned with flood control of the
Mississippi River. The geography of the Delta has been
colorfully and somewhat accurately described as
“beginning in the lobby of the Peabody Hotel at
Memphis, Tennessee, and ending at Catfish Row in Vicksburg,
Mississippi.” Since early times, concentrations of
blacks have resided in the Delta area.
Dittmer calls the Delta “both a clearly defined
geographical area and a state of mind.” The benefits of
“some of the richest soil in the nation” were
shared unequally: the land was worked by “tens of
thousands of poor black families” for the benefit of
“a relatively small number of white”
landowners. The Delta was “a place of appalling
poverty for the blacks who tilled the
Mississippi has changed over the years, it remains true that
“[b]lacks in Mississippi, especially in its Delta
region, generally have less education, lower incomes, and
more menial occupations than whites.” Updated
socio-economic data for District 22 will be discussed below.
plaintiffs introduced evidence confirming that the Delta is
“totally different” from Madison County. Lawson
agreed that the differences are geographical and cultural.
The Delta is rural, agrarian, and contains “the largest
concentration of black voting age population” in
Mississippi. Madison County is populous and suburban,
bordering the State's Capitol City, Jackson.
Madison County precincts situated in District 22, such as the
Gluckstadt area, are especially different. A prior
redistricting court designated them as a “high-growth
area” of the State. Cotton and soybeans are
growing in the Delta. The population is not.
2015 election, Thomas won the predominately African-American
precincts in Washington, Sharkey, Humphreys, and Yazoo
Counties. He lost the predominantly white precincts in
Madison and Bolivar Counties.
The Plaintiffs' Experts
plaintiffs called two experts to testify at trial. Both were
qualified by education and experience to give expert opinions
in their respective fields, and have previously provided
expert testimony in voting cases.
to testify was Dr. Maxwell Palmer, a political scientist at
Boston University. Dr. Palmer analyzed District 22's
voting patterns with a technique called “ecological
heart, EI “is the process of extracting clues about
individual behavior from information reported at the group or
aggregate level.” It is useful in voting cases because
“the secret ballot hinders the [research] process and
surveys in racially polarized contexts are known to be of
little value.” EI “estimates the underlying
propensity of each group to turn out for an election and to
vote for a particular candidate using the estimation
technique of maximum likelihood.” The process
is generally accepted in voting cases in this
Palmer testified that EI is a superior statistical method to
use in this case. He said that among other benefits, EI
allowed him to run 100, 000 simulations of each election in
the sample, and provided valuable statistical checks, such as
confidence intervals, on the results.
Palmer used precinct-level voting and Census data to analyze
10 elections in District 22. They consist of the 2003, 2007,
and 2015 Senate District 22 elections (i.e., the
“endogenous” elections most relevant to this
case), as well as the 2003 Lieutenant Governor and Treasurer
elections, the 2007 Insurance Commissioner election, the 2011
Governor election, and the 2015 Agriculture Commissioner,
Secretary of State, and Governor elections (i.e.,
the “exogenous” elections with some relevance to
this case). All 10 featured contests between white
and black candidates. The goal of the endogenous/exogenous
comparison was to see if findings were consistent between the
Senate races and statewide races also held in odd years in
analysis led Dr. Palmer to present the following conclusions:
there is “strong evidence” that African-American
voters in District 22 are politically cohesive, but that
their candidates of choice are defeated by white bloc voting.
Every African-American candidate lost in the 10 elections in
the sample, for example. Dr. Palmer also found that
African-American and white voters in the District are highly
racially polarized. In the 2015 State Senate race, 92.8% of
African-American voters chose Thomas, while only 11.4% of
white voters did the same.
there is a sizable turnout gap between African-American and
white voters in District 22. On average, white turnout is
10.2 percentage points higher than black turnout. This
conclusion was statistically significant in three out of the
four Senate District 22 races analyzed.
African-Americans would have a “realistic
opportunity” to elect their candidate of choice if the
BVAP in District 22 was increased to 62%.
cross-examination it became clear that the plaintiffs did not
ask Dr. Palmer to determine whether a BVAP lower than 62%
would be sufficient to elect the African-American
community's candidate of choice; rather, the plaintiffs
asked him to analyze the expected outcome of a 62% BVAP. Dr.
Palmer's report states that the 62% threshold was derived
from the map constructed by the plaintiffs' expert
mapmaker. We turn now to that expert.
Cooper was the plaintiffs' second and final expert
witness. Cooper uses geographic information system (GIS)
technology to create electoral maps.
case, the plaintiffs asked Cooper to determine whether
District 22's boundaries could be reconfigured to
increase the BVAP while honoring traditional redistricting
criteria and minimizing disruption to adjacent Districts. The
plaintiffs also asked Cooper to gather relevant
socio-economic data for District 22.
concluded that yes, although African-American voters in
District 22 are already sufficiently numerous and
geographically compact as to constitute a majority, the
District could be redrawn to increase the BVAP by at least 10
additional percentage points. He then prepared three maps
demonstrating how District 22 could be reconfigured.
moves the Madison County precincts and eight Yazoo County
precincts from District 22 to District 23. In exchange, the
Issaquena County precincts and eight Warren County precincts
would move in the opposite direction. A total of 28 out of
Mississippi's 1, 962 precincts (1.4%) would be shifted.
No. precinct lines would be redrawn. Approximately 70% of the
population of District 22 would remain in District 22, while
approximately 67% of the population of District 23 would stay
put. A total of 27, 000 voters in these Districts would be
Plan 1, the BVAP would rise to 61.98%.
is pasted below. The thick blue lines represent the Districts
as currently constituted. The gold and pink areas show how
the Districts would change.
developed Plans 2 and 3 in response to the defendants'
arguments during discovery. The defendants' expert had
contended (among other things) that Plan 1 was unwieldy
because it would split the City of Vicksburg between
Districts 22 and 23. So in Plan 2, Cooper proposed another
way to redraw those Districts that, while achieving the goals
of Plan 1, would offset the splitting of Vicksburg by
reuniting all of Yazoo City into a single District. Plan 2
ends up with a BVAP of 61.3%.
takes that idea one step further. While Vicksburg would again
be split, Plan 3 redraws the boundaries to reunite Yazoo City
and Cleveland, Mississippi-both of which are
currently divided-resulting in a net decrease in split
cities. The resulting BVAP is 66.1%.
downside of Plan 3 is that it also involves adjusting the
borders of District 13, thereby affecting more counties,
precincts, and voters. It essentially presents a trade-off
between municipal unification and pre-election disruption.
and 3 are shown below. Again, the thick blue lines represent
the Districts as currently constituted, while the gold, pink,
and in Plan 3, green areas indicate how the Districts would
ILLUSTRATIVE PLAN 2
ILLUSTRATIVE PLAN 3
Cooper's illustrative plans satisfy traditional
redistricting criteria. They are contiguous, reasonably
compact, reasonably shaped, satisfy one-person one-vote, and
do not dilute minority voting strength. The incumbent Senator
in District 23 remains in the same District. (The incumbent
in District 22, Buck Clarke, is not running for reelection
although his residence remains in the District.)
the extent possible, consistent with the constitutional and
statutory requirements, federal redistricting courts attempt
to preserve local political boundaries-city and county lines,
” since those lines often reflect “communities of
In addition to the communities of interest represented by
counties and municipalities, there are other communities of
interest which share common concerns with respect to one or
more identifiable features such as geography, demography,
ethnicity, culture, socio-economic status or trade. The
preservation of regional communities of interest within a
single district enhances the ability of constituents with
similar regional interests to obtain effective representation
of those interests.
testified that Plan 1 better respects communities of interest
than the current map. Issaquena County and part of Warren
County are more like the other Counties in District 22, he
said, while the Madison County precincts are closer in nature
to the wealthier parts of Warren County already sited in
Cooper reviewed Census data showing a variety of substantial
socio-economic disparities between African-Americans and
whites in District 22 that likely reduce voter turnout.
statistics are bleak. The African-American poverty rate in
District 22 is nearly five times the white poverty rate.
Educational attainment for African-Americans is depressingly
low. African-Americans who work full time make a
median wage of $20, 256 a year, while the median
white full-time worker makes nearly double-$40,
485. These and similar disparities, some of
which are reproduced below, reflect two populations that
reside alongside each other yet experience vastly different
opportunities and outcomes:
PROFILE OF DISTRICT 22
Median Household Income
High School Dropout Rate
Bachelor's Degree Attainment
Median Full-time Wage
Adults Without Health Insurance
proceeded to explain that the inclusion of Madison County
voters added significantly to these disparities. County-level
statistics reveal that Madison County's median household
income is more than twice as much as any other County in
District 22. In Madison County, for example, the
median household brings in $68, 600 annually, a full $40, 000
more than the median household in neighboring Yazoo County
($28, 330). After Madison County, the second-wealthiest
County in the District is Sharkey County, with a $30, 033
median household income. Obviously, that is less than half of
Madison County's figure.
Mississippi Department of Employment Security has created a
helpful map demonstrating county-level income differences as
they existed in 2017. It shows that Madison County had the
highest per-capita income that year in all of Mississippi:
turn to the other side of this battle of the experts.
The Defendants' Expert
defendants' sole expert was Dr. Peter A. Morrison, an
applied demographer from Nantucket, Massachusetts. Dr.
Morrison is retired from the RAND Corporation.
Morrison took a different approach to whether white bloc
voting usually defeats African-American-preferred candidates.
He did not look at the Senate District 22 elections, but
instead compiled the results of local elections
within the boundaries of District 22. From 2007-
onward, he found “152 separate instances in which a
candidate favored by AA voters has been elected to local
public office throughout the territory included in”
Humphreys County, for example, Dr. Morrison examined the
records of the 2007, 2011, and 2015 elections for local
offices such as Chancery Clerk, Circuit Clerk, and Sheriff.
From those records he identified a sample of 21 elections in
which an African-American candidate ran and won. Of those, 14
races were uncontested and 7 were contested.
Morrison testified that based on this “simple counting
operation-that's what demographers do, ”
African-Americans are capable of winning elections within
District 22. When asked about the possibility of white bloc
voting defeating African-American-preferred candidates, he
explained that he could not “see how that could
possibly be the case” given the number of
African-American elected officials. “The numbers speak
Morrison took issue with Plan 1. He argued that splitting
Vicksburg would subordinate traditional redistricting
criteria to race. Dr. Morrison also claimed that
African-Americans in District 23 would be harmed because
their “influential” 42% BVAP would be reduced to
31%. “Overall, ” he wrote, “Plaintiffs'
proposed alternative [Plan 1] would strip African-American
voters of two districts in which they are now
Dr. Morrison gathered Census data about voter turnout in
Mississippi. Surveys from even-numbered election years
spanning 2004-2016 show that African-Americans self-reported
higher turnout rates than white voters. “These data
furnish convincing evidence that African Americans in
Mississippi have access to the political process and have
participated in that process at ever higher rates in recent
years, ” Dr. Morrison concluded.