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Thomas v. Bryant

United States District Court, S.D. Mississippi, Northern Division

February 16, 2019




         In July 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.[1]

         On 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.

         I. Factual and Procedural History

         A. The Parties

         Plaintiff 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.[2]

         In 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.

         The decennial redistricting process resulted in changes to the Senate map in 2012. Thomas's residence wound up in District 22.

         Thomas 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 elections.

         Thomas 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.

         In 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.

         Thomas 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.

         Plaintiff 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.

         In 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 plaintiff.

         We know little about plaintiff Vernon Ayers other than this: he is a registered voter in District 22. Neither side has elaborated on his situation.

         Each plaintiff is African-American.

         Defendants Governor Phil Bryant, Attorney General Jim Hood, and Secretary of State Delbert Hosemann constitute the State Board of Election Commissioners.[3] All three are sued in their official capacities.

         B. District 22

         District 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 this:

         (Image Omitted)

         Most of 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.[4]

         John Dittmer calls the Delta “both a clearly defined geographical area and a state of mind.”[5] 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.[6] The Delta was “a place of appalling poverty for the blacks who tilled the land.”[7]

         As 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.”[8] Updated socio-economic data for District 22 will be discussed below.

         The 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.[9] Madison County is populous and suburban, bordering the State's Capitol City, Jackson.

         The 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.[10] Cotton and soybeans are growing in the Delta. The population is not.

         In the 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.

         C. The Experts

         1. The Plaintiffs' Experts

         The 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.

         First 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 inference” (EI).

         At heart, EI “is the process of extracting clues about individual behavior from information reported at the group or aggregate level.”[11] 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.”[12] 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.”[13] The process is generally accepted in voting cases in this Circuit.[14]

         Dr. 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.

         Dr. 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).[15] 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 District 22.

         This analysis led Dr. Palmer to present the following conclusions:

         First, 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.[16] Dr. Palmer also found that African-American and white voters in the District are highly racially polarized.[17] In the 2015 State Senate race, 92.8% of African-American voters chose Thomas, while only 11.4% of white voters did the same.

         Second, there is a sizable turnout gap between African-American and white voters in District 22.[18] 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.

         Third, African-Americans would have a “realistic opportunity” to elect their candidate of choice if the BVAP in District 22 was increased to 62%.

         On 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.

         William Cooper was the plaintiffs' second and final expert witness. Cooper uses geographic information system (GIS) technology to create electoral maps.

         In this 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.

         Cooper 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.

         Plan 1 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 affected.

         Under Plan 1, the BVAP would rise to 61.98%.

         Plan 1 is pasted below. The thick blue lines represent the Districts as currently constituted. The gold and pink areas show how the Districts would change.

         (Image Omitted)

         Cooper 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%.

         Plan 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%.

         The 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.

         Plans 2 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 change.



         (Image Omitted)

         All of 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.)

         “To 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 interest.”[20]

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.[21]

         Cooper 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 District 23.

         Finally, 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.

         The 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.[22] 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:




Poverty Rate



Median Household Income

$23, 741

$66, 736

SNAP Participation



High School Dropout Rate



Bachelor's Degree Attainment



Median Full-time Wage

$20, 256

$40, 485

Adults Without Health Insurance



         Cooper 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.[23] 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.

         The 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:

         (Image Omitted)

         We now turn to the other side of this battle of the experts.

         2. The Defendants' Expert

         The defendants' sole expert was Dr. Peter A. Morrison, an applied demographer from Nantucket, Massachusetts. Dr. Morrison is retired from the RAND Corporation.

         Dr. 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” District 22.

         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.

         Dr. 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 for themselves.”

         Dr. 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 influential.”

         Finally, 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.

         D. ...

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