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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

MISSISSIPPI STATE CONFERENCE OF

THE NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED
PEOPLE, ET AL. PLAINTIFFS

V. CIVIL ACTION NO. 3:22-CV-734-DPJ-HSO-LHS

STATE BOARD OF ELECTION

COMMISSIONERS, ET AL. DEFENDANTS

1 Before Southwick, Circuit Judge, Jordan, Chief District Judge, and

2 Ozerden, District Judge.
3 Per Curiam.
4 The Mississippi State Conference of the National Association for the
5 Advancement of Colored People and numerous individual black Mississippi
6 voters brought this suit against the Mississippi State Board of Election
7 Commissioners and other Mississippi officials. They challenged the State’s
8 2022 redistricting maps for electing members of the state legislature. The
9 Plaintiffs allege the 2022 maps dilute black Mississippian votes in violation
10 of Section 2 of the Voting Rights Act of 1965, 52 U.S.C. § 10301, and contain
11 unconstitutional racial gerrymanders in violation of the Fourteenth
12 Amendment of the United States Constitution.
13 We find the Plaintiffs have satisfied their burden under Thornburg v.
14 Gingles, 478 U.S. 30 (1986), by presenting three illustrative districts that
15 satisfy the requirements of Section 2. See 52 U.S.C. § 10301. We conclude,
16 however, that the Plaintiffs did not establish the redistricting maps are
17 unconstitutional racial gerrymanders. We will provide the Mississippi
18 Legislature an opportunity to enact revised maps.
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19 Before explaining our ruling, we wish to state the court’s appreciation

20 to all counsel for their professionalism. Voting-rights litigation can be
21 contentious. In this lawsuit, though, lawyers and witnesses were respectful
22 and measured in the expression of the disagreements about the law and the
23 evidence. Some very wise and experienced Mississippi voting-rights lawyers
24 appeared on both sides of this dispute. New and quite able lawyers from
25 within and beyond the state’s borders appeared as well. All are to be
26 commended.
27 I. FACTUAL AND PROCEDURAL BACKGROUND
28 A. Parties
29 The Mississippi State Conference of the National Association for the
30 Advancement of Colored People (“Mississippi NAACP”) is the only
31 organizational plaintiff in this suit. It is a subsidiary organization of the
32 National Association for the Advancement of Colored People, Inc., a non-
33 profit organization founded in 1909. Stipulations [199] App. A at 1. Some
34 Mississippi NAACP members are registered voters who reside in the five
35 legislative districts that the Plaintiffs challenge as unconstitutional racial
36 gerrymanders. Id.; Doc [220], 6.
37 Fourteen individual Mississippians joined the Mississippi NAACP as
38 Plaintiffs in this case. 1 Doc [199], 2–5. These individuals are all registered
39 voters who live in one of the challenged legislative districts and consider
40 themselves to be Democrats. Id. Several individual Plaintiffs are also

_____________________
1
The Individual Plaintiffs named in the complaint are Dr. Andrea Wesley, Dr.
Joseph Wesley, Robert Evans, Gary Fredericks, Pamela Hamner, Barbara Finn, Otho
Barnes, Shirlinda Robertson, Sandra Smith, Deborah Hulitt, Rodesta Tumblin, Dr. Kia
Jones, Angela Grayson, Marcelean Arrington, and Victoria Robertson. Doc [199], 2–5.
Angela Grayson withdrew as a Plaintiff in September 2023. Doc [84] (Order Granting
Withdrawal).

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41 members of the Mississippi NAACP. Id. We refer to these parties

42 collectively as the Plaintiffs.
43 The Mississippi State Board of Election Commissioners is composed
44 of the Attorney General, the Mississippi Governor, and the Secretary of
45 State. MISS. CODE ANN. § 23-15-211. That board, Mississippi Attorney
46 General Lynn Fitch, Mississippi Governor Tate Reeves, and Mississippi
47 Secretary of State Michael Watson were all named as Defendants in this suit.
48 Id. at 5–6. The Mississippi Republican Executive Committee moved to
49 intervene as a Defendant, and the motion was granted in May 2023. Doc [32]
50 (Motion); Text-Only Order May 19, 2023 (Granting Motion). We refer to
51 these parties collectively as the Defendants.
52 B. The Mississippi Legislature’s Actions
53 The United States Census Bureau conducts a census during the first
54 year of each decade and releases the results the following year to every state.
55 See 13 U.S.C. § 141. Every ten years following the release of the census data,
56 the Mississippi Legislature is to “apportion the state in accordance with the
57 Constitution of the state and of the United States into consecutive numbered
58 Senatorial and Representative districts of contiguous territory.” MISS.
59 CONST. art. XIII, § 254. The Mississippi Legislature’s Standing Joint
60 Legislative Committee on Reapportionment and Redistricting (“Standing
61 Joint Committee”) is the legislative body responsible for drafting each
62 Mississippi reapportionment plan for state senate and state house
63 membership once the decennial census data is delivered. See MISS. CODE
64 ANN. §§ 5-3-91 to 5-3-103. The Standing Joint Committee must draw plans
65 “according to constitutional standards” and state guidelines. §§ 5-3-93, 5-3-
66 101. The state guidelines are:
67 (a) Every district shall be compact and composed of contiguous
68 territory and the boundary shall cross governmental or
69 political boundaries the least number of times possible; and

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70 (b) Districts shall be structured, as far as possible and within

71 constitutional standards, along county lines; if county lines
72 are fractured, then election district lines shall be followed
73 as nearly as possible.
74 § 5-3-101. Once the redistricting maps are drafted and approved by the
75 Standing Joint Committee, each house must approve a joint resolution that
76 sets out the maps. MISS. CONST. art. XIII, § 254. The Mississippi Governor
77 has no official role in the approval of the maps.
78 In response to COVID-19, the Census Bureau was required to adapt
79 and delay some of its 2020 Census operations. See U.S. CENSUS BUREAU,
80 U.S. DEP’T OF COM. AND LABOR, 2020 CENSUS OPERATIONAL
81 ADJUSTMENTS: CHANGES DUE TO COVID-19 (2020),
82 [Link]
83 ec/[Link]. The release of redistricting data
84 had an original statutory deadline of March 31, 2021, but it was not released
85 to states until August 12, 2021. Id.; Stipulations [199] App. A at 10. The
86 2020 Census data showed that over the last ten years, Mississippi’s overall
87 population declined from 2,967,297 to 2,961,279 — a 6,018-person decrease
88 from the 2010 Census. Stipulations [199] App. A at 11. The non-Hispanic
89 White population decreased by 83,210 persons, and the Any-Part Black
90 population increased by 7,812 persons. Id. The Any-Part Black population
91 constitutes 37.94 percent of the state’s total population and 36.14 percent of
92 the voting-age population, making it the largest minority population in
93 Mississippi. Id. Based on this population data, the ideal district size for a
94 state senate district is 56,948, and the ideal size for a state house district is
95 24,273. Id. at ¶ 57.
96 Following the release of the 2020 Census data, the Mississippi
97 Legislature convened the Standing Joint Committee, which conducted nine
98 public hearings and held four public meetings over the course of nine months.

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99 Doc [199], 10–11; Stipulations [199] App. A at 12. Members of the public
100 were invited to participate in the public hearings held between August 5,
101 2021, and August 23, 2021, and to provide input on the redistricting process.
102 Stipulations [199] App. A at 12. No proposed redistricting maps were
103 revealed to the public at these hearings, nor was the public given the
104 opportunity to comment on the maps. Id.
105 In a 15-minute November 2021 open meeting, the Standing Joint
106 Committee adopted the following criteria for drawing the state legislative
107 districts:
108 (1) Each district’s population should be less than 5 [percent]
109 above or below the ideal population of the district.
110 (2) Districts should be composed of contiguous territory.
111 (3) The redistricting plan should comply with all applicable
112 state and federal laws including Section 2 of the Voting
113 Rights Act of 1965, as amended, and the Mississippi and
114 United States Constitutions.
115 Doc [199], 10; Stipulations [199] App. A at 12; JTX-013. Thus, the
116 population must be within 5 percent of 56,948 for a state senate district and
117 within 5 percent of 24,273 for a state house district. Stipulations [199] App.
118 A at 11–12. In addition to these three criteria, separation of incumbents into
119 different districts is a legally available redistricting standard. Bush v. Vera,
120 517 U.S. 952, 964–65 (1996) (plurality opinion). The Standing Joint
121 Committee also considered precinct-level voting-age and voting-age racial-
122 demographic information as required by the Voting Rights Act when devising
123 districts. Stipulations [199] App. A at 12–13; see 52 U.S.C. § 10301.
124 The Standing Joint Committee held its final meeting on March 27,
125 2022, and it publicly revealed the proposed maps for the state legislative
126 districts. Stipulations [199] App. A at 13. At five o’clock that same day, the
127 Standing Joint Committee voted to adopt both proposed maps, with

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128 Representative Bo Brown, Senator Angela Turner-Ford, and Senator

129 Derrick Simmons voting against the proposed state house map. See id. at
130 ¶ 63; JTX-014.
131 On March 29, both the full state house and state senate voted to adopt
132 their respective districting plans. Stipulations [199] App. A at 13. Two
133 amendments were proposed to the state house districting plan, JR 1. JTX-
134 010, 31:20–24, 23:25–46:20. The first amendment was adopted by voice vote
135 to separate the districts for two black Democratic representative incumbents,
136 and the second amendment supplying an alternative map portraying an
137 additional five black-majority districts failed by a vote of 77 to 39 as an
138 admitted racial gerrymander. Id. at 47:20–21. The two amendments
139 proposed to the state senate districting plan, JR 202, also failed. Those
140 amendments would have added four black-majority districts. Democratic
141 Senator Simmons, who advocated for adding four majority-black senate
142 seats, emphasized that the black population in Mississippi had grown and the
143 white population had shrunk. Therefore, he argued, a “map that maintains
144 the status quo simply dilutes black voting strength in Mississippi.” JTX-011,
145 98:09–99:12; see also Stipulations [199] App. A at 13; Doc [219], 9 n.5.
146 Republican Senator Dean Kirby responded by contending that Senator
147 Simmons’s proposed map “is not a map this state needs.” JTX-011, 99:19–
148 20. The senate approved the map released by the Standing Joint Committee.
149 JTX-011, 194:13–14; see also Doc [219], 9 n.5; Doc [220], 4.
150 On March 31, the state house approved JR 202, the state senate
151 approved JR 1, and the maps (the “Enacted Plans”) became law.
152 Stipulations [199] App. A at 13. The Enacted Plans were determined to be in
153 compliance with the Mississippi Code, containing only one senate district
154 and three house districts where two incumbents were paired together. See
155 MISS. CODE ANN. § 5-3-101; see also Bush, 517 U.S. at 964–65.

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156 The Mississippi Legislature consists of 52 state senate districts and

157 122 state house districts. Stipulations [199] App. A at 13, 15. Of the 52 senate
158 districts, the Enacted Senate Plan renders 15 black-majority districts, and of
159 the 122 house districts, the Enacted House Plan renders 42 black-majority
160 districts based on the 2020 Census data. Id. at 14–15. Both Enacted Plans
161 retained the same number of black-majority districts used for the last state
162 legislative elections prior to the 2020 Census. 2 Doc [220], 2. In doing so,
163 the floor debates of both houses contained generalized statements from
164 Senator Kirby and Representative Beckett that “maintaining the political
165 performance” of Republicans and Democrats throughout the state was an
166 “important consideration in developing th[e] proposed plan[s],” yet those
167 statements were not made in relation to the specific districts in this case, nor
168 was there any data mentioned that was used to achieve that general goal.
169 JTX-010, 14:25–15:06; see JTX-011, 12:06–11. The only specifics provided
170 were that years of service and incumbency were considered factors of
171 “political performance.” JTX-010, 20:09–24. The Defendants use that
172 phrase without specifically defining it. We take from the record, though, that
173 years of service and incumbency are aspects of political performance. If
174 political performance is distinguishable from incumbent protection, the
175 differences would seem to be minor.

_____________________
2
The legislature enacted plans for both houses in 2012 following the release of the
2010 Census data; in 2019, the legislature adopted a revised plan for the senate as a result
of a court order. See Thomas v. Bryant, 938 F.3d 134, 140, 143 (5th Cir. 2019). The 2012
State Senate Plan contained 15 black-majority districts, and the 2012 State House Plan
contained 42 black-majority districts. Stipulations [199] App. A at 14–15 ¶¶ 67, 79. The
United States Department of Justice precleared the plans as was then required under
Section 5 of the Voting Rights Act. See Shelby County v. Holder, 570 U.S. 529, 556–57
(2013). The 2019 Senate Plan that created one more black-majority district was used in the
2019 elections, but the senate districts reverted to the 2012 geographical boundaries
following the Fifth Circuit’s vacating the 2019 Senate Plan because the litigation that
caused its creation was moot. Thomas v. Reeves, 961 F.3d 800, 801 (5th Cir. 2020).

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176 The Standing Joint Committee played no further role in the

177 redistricting process once the Enacted Plans became state law. It is the
178 responsibility of various other state and local officials to enforce and
179 implement the law and to administer elections. See MISS. CODE ANN. § 23-
180 15-211, et seq. The Enacted Plans established the current makeup of the
181 Mississippi Legislature as of January 15, 2024: 16 Democrats and 36
182 Republicans in the state senate; 41 Democrats, 79 Republicans, and 2
183 Independents in the state house; 14 black senators and 38 white senators; and
184 roughly 40 black representatives and 82 white representatives. Stipulations
185 [199] App. A at 16.
186 C. The Litigation
187 The Plaintiffs filed this civil action in December 2022, challenging the
188 Enacted Plans as violations of both the Equal Protection Clause of the
189 Fourteenth Amendment and Section 2 of the Voting Rights Act and seeking
190 declaratory and injunctive relief. Doc [219], 13; Doc [220], 4; Doc [1]
191 (Complaint). Two former defendants, State Senator Dean Kirby and State
192 Representative Dan Eubanks, filed a motion to dismiss for lack of jurisdiction
193 over them, after which the Plaintiffs amended their complaint and named
194 only the above-mentioned Defendants. Docs. [17], [18], [24], [27]. The
195 Mississippi Republican Executive Committee later intervened as a
196 Defendant. Doc [32] (Motion); Text-Only Order May 19, 2023 (Granting
197 Motion).
198 As part of their Section 2 claim, the Plaintiffs assert Mississippi’s
199 black population requires at least four additional black-majority senate
200 districts and at least three additional black-majority house districts be drawn.
201 Doc. [27], 3. In some of the same areas where these alleged districts can be
202 drawn, the Plaintiffs contend two enacted senate districts and three enacted
203 house districts are unconstitutional racial gerrymanders that were drawn

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204 with race as the predominant factor. Id. at 4; Doc [220], 4–5 (see chart on pg.
205 5). To support their contention, the Plaintiffs proposed two Illustrative Plans
206 — one Illustrative Senate Plan and one Illustrative House Plan — that
207 contained seven illustrative majority-minority districts to be added to the
208 current number of majority-minority districts. PTX-001, 26–79, Ex. M &
209 AH. According to the Defendants, were the Mississippi Legislature to accept
210 the Plaintiffs’ seven illustrative districts, it would cause ripple effects in more
211 than 70 current electoral districts. PTX-001, 28 ¶ 53, 60 ¶ 122.
212 An order for a trial was entered in June 2023, but the trial did not begin
213 until February 26, 2024, before a three-judge panel as required by statute.
214 See 28 U.S.C. § 2284(a); Doc [3], 40, 44; see Text-Only Order June 23, 2023
215 (Setting Trial Deadlines). The trial lasted eight days, during which fourteen
216 Plaintiff witnesses and three Defense witnesses testified. See generally Docs
217 [212], [215]. Thereafter, the Plaintiffs and Defendants, along with the
218 Intervenor Defendant, filed post-trial briefs and proposed findings and
219 conclusions of law. Docs. [218]–[221].
220 II. GENERAL LEGAL PRINCIPLES
221 Legislative reapportionment “is primarily the duty and responsibility
222 of the States, not the federal courts.” Allen v. Milligan, 599 U.S. 1, 29 (2023)
223 (quotation marks and citation omitted). However, a State’s actions
224 throughout its redistricting process can be challenged under both the
225 Fourteenth Amendment and the Voting Rights Act. The Equal Protection
226 Clause of the Fourteenth Amendment prohibits states from denying “any
227 person within [their] jurisdiction the equal protection of the laws.” U.S.
228 CONST. amend. XIV, § 1. “Its central purpose is to prevent the States from
229 purposefully discriminating between individuals on the basis of race.” Shaw
230 v. Reno, 509 U.S. 630, 642 (1993). Improper racial gerrymanders used in
231 legislative redistricting — like those alleged here — fall within the

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232 Fourteenth Amendment’s prohibition. Cooper v. Harris, 581 U.S. 285, 291
233 (2017).
234 “‘Electoral districting is a most difficult subject for legislatures,’
235 requiring a delicate balancing of competing considerations.” Bethune-Hill v.
236 Va. State Bd. of Elections, 580 U.S. 178, 187 (2017) (quoting Miller v. Johnson,
237 515 U.S. 900, 915 (1995)). Section 2 of the Voting Rights Act prohibits any
238 “standard, practice, or procedure” imposed by a State throughout its
239 electoral districting process that “results in a denial or abridgement of the
240 right of any citizen of the United States to vote on account of race or color.”
241 52 U.S.C. § 10301(a). “The essence of a [Section] 2 claim is that a certain
242 electoral law, practice, or structure interacts with social and historical
243 conditions to cause an inequality in the opportunities enjoyed by black and
244 white voters to elect their preferred representatives.” Gingles, 478 U.S. at
245 47. “Such a risk is greatest ‘where minority and majority voters consistently
246 prefer different candidates’ and where minority voters are submerged in a
247 majority voting population that ‘regularly defeats’ their choices.” Milligan,
248 599 U.S. at 18 (quoting Gingles, 478 U.S. at 48). The Supreme Court thus
249 requires Section 2 vote-dilution claims be analyzed using the Gingles three-
250 part framework. Id. at 17. If a court concludes that plaintiffs do not have an
251 equal opportunity to elect their preferred candidate under a challenged
252 districting map, there likely is a Section 2 violation. See Gingles, 478 U.S. at
253 44; Robinson v. Ardoin, 86 F.4th 574, 589 (5th Cir. 2023).
254 The Plaintiffs presented evidence at trial under both the Equal
255 Protection Clause and Section 2. We will discuss each theory separately.
256 III. EQUAL PROTECTION CLAIM
257 Racial gerrymandering occurs when race improperly motivated the
258 drawing of electoral districts such that it “rationally cannot be understood as
259 anything other than an effort to separate voters” based on race. Shaw, 509

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260 U.S. at 649; see Alabama Legis. Black Caucus v. Alabama, 575 U.S. 254, 262–
261 63 (2015). Courts conduct “a two-step analysis” to determine whether a
262 legislative district is an unconstitutional racial gerrymander. Harris, 581 U.S.
263 at 291. “First, the plaintiff must prove that ‘race was the predominant factor
264 motivating the legislature’s decision to place a significant number of voters
265 within or without a particular district.’” Id. (quoting Miller, 515 U.S. at 916).
266 If “the legislature subordinated other factors — compactness, respect for
267 political subdivision, partisan advantage, [etc.] — to racial considerations,”
268 race is the predominant factor. Id. (quotation marks and citation omitted).
269 The plaintiff has the burden of proof when asserting a challenged
270 district was enacted with discriminatory intent. Abbott v. Perez, 585 U.S. 579,
271 603 (2018). Because of the “serious intrusion” courts make into “the most
272 vital of local functions” when analyzing redistricting cases, the “good faith
273 of the state legislature must be presumed.” Id. (quoting Miller, 515 U.S. at
274 915). This presumption, however, can be overcome if the plaintiff makes a
275 sufficient showing that the legislature subordinated traditional race-neutral
276 districting principles to race. See Miller, 515 U.S. at 915–16. Plaintiffs can
277 use “direct evidence of legislative intent, circumstantial evidence of a
278 district’s shape and demographics,” or both to meet this burden and to
279 establish race as the predominant factor. Harris, 581 U.S. at 291 (quotation
280 marks and citation omitted).
281 The second step in the analysis shifts the burden to the State to
282 withstand strict scrutiny. Id. at 292. If race was the predominant factor, the
283 State must prove that “its race-based sorting of voters” and the district’s
284 design serve a “compelling interest” and are “narrowly tailored to that end.”
285 Id. (quotation marks and citation omitted). The Supreme Court recognizes
286 compliance with the Voting Rights Act — including Section 2 — as a
287 compelling interest. Id. Using Section 2 to justify race-based districting,
288 however, requires a State show “it had ‘a strong basis in evidence’ for

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289 concluding that the statute required its action.” Id. (quoting Alabama Legis.
290 Black Caucus, 575 U.S. at 278). In other words, the legislature must have had
291 “good reasons” to believe such district drawing was necessary for statutory
292 compliance. Alabama Legis. Black Caucus, 575 U.S. at 278.
293 The racial-predominance inquiry “concerns the actual considerations
294 that provided the essential basis for the lines drawn, not post hoc justifications
295 the legislature in theory could have used but in reality did not.” Bethune-Hill,
296 580 U.S. at 189–90. It concerns how the legislature conducted the
297 redistricting, not why the legislature conducted it that way. See Harris, 581
298 U.S. at 308 n.7. The Plaintiffs thus bear the burden under this inquiry “to
299 show, either through circumstantial evidence of a district’s shape and
300 demographics or more direct evidence going to legislative purpose, that race
301 was the predominant factor motivating the legislature’s [redistricting]
302 decision,” Bethune-Hill, 580 U.S. at 187 (quoting Miller, 515 U.S. at 916),
303 “regardless of [the legislature’s] ultimate objective,” Harris, 581 U.S. at 308
304 n.7.
305 Unlike a Section 2 claim that may be established by discriminatory
306 results, the Plaintiffs were required to provide sufficient evidence of “race-
307 based decisionmaking” to prove their Equal Protection claim. See Miller, 515
308 U.S. at 915. In other words, the Plaintiffs’ task “is simply to persuade the
309 trial court — without any special evidentiary prerequisite — that race (not
310 politics) was the predominant consideration” of the Mississippi Legislature
311 during the redistricting process when drawing the Enacted Plans. Harris, 581
312 U.S. at 318 (quotation marks and citation omitted). This is a demanding
313 burden, and “[p]roving racial predominance with circumstantial evidence
314 alone is much more difficult” when partisanship is raised as a defense.
315 Alexander v. S.C. State Conf. of the NAACP, 144 S. Ct. 1221, 1234–35 (2024).

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316 “[P]artisan and racial gerrymanders ‘are capable of yielding similar

317 oddities in a district’s boundaries’ when there is a high correlation between
318 race and partisan preference.” Id. at 1235 (quoting Harris, 581 U.S. at 308).
319 “When partisanship and race correlate, it naturally follows that a map that
320 has been gerrymandered to achieve a partisan end can look very similar to a
321 racially gerrymandered map.” Id. To prevail on their racial gerrymandering
322 claim, the Plaintiffs “must disentangle race from politics by proving that the
323 former drove a district’s lines.” Id. (emphasis in original) (quotation marks
324 and citation omitted).
325 The Intervenor Defendant insisted throughout trial the Plaintiffs
326 stipulated this constitutional claim away with one of their interrogatory
327 responses:
328 9. Does the identification of invidiously discriminatory intent
329 on the basis of race constitute technical knowledge which may
330 be the subject of expert testimony under Rule 702?
331 Plaintiffs’ Response: Plaintiffs do not assert any claims
332 premised on invidious discriminatory intent on the basis of
333 race.
334 Doc [199], 16 (Pretrial Order). The Plaintiffs, however, attempt to
335 distinguish “invidious” behavior and the necessary predominance under
336 Equal Protection. Footnote 10 of the Plaintiffs’ post-trial brief argues it this
337 way:
338 In contrast to claims involving racial animus or invidious
339 discrimination, “the essence of the [E]qual [P]rotection claim
340 recognized in Shaw is that the State has used race as a basis for
341 separating voters into districts.” [Miller, 515 U.S. at 911.]
342 Racial gerrymandering claims are thus cognizable even when
343 the State undertakes the racial sorting with a “benign”
344 motivation. Shaw, 509 U.S. at 653; see also Bush, 517 U.S. at
345 984. Consistent with that distinction, racial gerrymandering
346 claims require that racial sorting be the “predominant”

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347 consideration affecting a “significant” number of voters,

348 whereas claims of invidious discrimination are actionable even
349 if discriminatory purpose is merely “a motivating factor”
350 affecting any racial group, regardless of the number of
351 individuals affected. Compare [Harris], 581 U.S. at 291–92 with
352 Vill[age] of Arlington Heights v. Metro. Hous. Dev. Corp., 429
353 U.S. 252, 265 (1977).
354 Doc [221], 25 n.10.
355 One of the cited precedents discusses whether a statute’s explicit
356 racial classification was “benign” and subject to the less-searching review
357 Justice Souter argued for in dissent or was “motivated by illegitimate notions
358 of racial inferiority or simple racial politics.” Shaw, 509 U.S. at 642–43, 653
359 (quotation marks and citation omitted). The Supreme Court held that either
360 motive, if focused on race, was subject to strict scrutiny under the Equal
361 Protection Clause “because without it, a court cannot determine whether or
362 not the discrimination truly is ‘benign.’” Id. at 653.
363 Other caselaw indicates racial reasons might be able to survive strict
364 scrutiny if the State believes a racial gerrymander enactment is needed to
365 satisfy the Voting Rights Act. As recently as 2022, the Supreme Court stated
366 that a consciously gerrymandered district could be upheld for that reason:
367 Under the Equal Protection Clause, districting maps that sort
368 voters on the basis of race “‘are by their very nature odious.’”
369 Shaw[,] 509 U.S. [at] 643[.] Such laws “cannot be upheld
370 unless they are narrowly tailored to achieving a compelling
371 state interest.” Miller[,] 515 U.S. [at] 904[.] We have assumed
372 that complying with the VRA is a compelling interest. [] Harris,
373 581 U.S. [at 292]. And we have held that if race is the
374 predominant factor motivating the placement of voters in or
375 out of a particular district, the State bears the burden of
376 showing that the design of that district withstands strict
377 scrutiny. Ibid. Thus, our precedents hold that a State can

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378 satisfy strict scrutiny if it proves that its race-based sorting of

379 voters is narrowly tailored to comply with the VRA. Ibid.
380 Wisconsin Legis. v. Wis. Elections Comm’n, 595 U.S. 398, 401 (2022). The
381 word “invidious” was not used in either the 2022 Wisconsin Legislature
382 opinion or the 2017 Harris opinion that it cites. The Supreme Court did use
383 “invidious” in its 1995 Miller opinion, which also dealt with a motive of
384 advantaging minorities. There, the State argued that the Department of
385 Justice made it utilize race-based redistricting:
386 Our presumptive skepticism of all racial classifications
387 prohibits us as well from accepting on its face the Justice
388 Department’s conclusion that racial districting is necessary
389 under the Act. Where a State relies on the Department’s
390 determination that race-based districting is necessary to
391 comply with the Act, the judiciary retains an independent
392 obligation in adjudicating consequent equal protection
393 challenges to ensure that the State’s actions are narrowly
394 tailored to achieve a compelling interest.
395 Miller, 515 U.S. at 922 (citation omitted).
396 The Miller Court noted it was uncontested that the parties
397 “practically stipulated” that a particular district was a racial gerrymander
398 and explicitly discussed the “maximizing majority-black” policy that drove
399 the enactment of the “max-black plan.” Id. at 910, 924. The majority never
400 tried to distinguish the advantaging-minorities motive from harming them,
401 simply referring to “invidious discrimination” in its concluding paragraph as
402 the label for what the legislature had done even though it was trying to help
403 the minority population have an equal opportunity to gain public office. Id.
404 at 927. The Court reprimanded any form of “automatic invocation of race
405 stereotypes” as they “retard[] that progress and cause[] continued hurt and
406 injury” to the minority population in election law. Id.

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407 There is little caselaw discussing whether favorable motives are

408 “invidious” even when they fail under strict scrutiny as they did in Miller.
409 We thus give the Plaintiffs some leeway as to the relevance of the label
410 “invidious” considering the Supreme Court recognized racial motives that
411 might be upheld in Shaw, Harris, and Wisconsin Legislature. Still, no
412 precedent has made the point the Plaintiffs urge here — that the word
413 “invidious” does not apply to some unacceptable motives. The only racial
414 motives so far discussed by the Court that might be upheld are used to
415 comply with the Voting Rights Act. Wisconsin Legis., 595 U.S. at 401; Miller,
416 515 U.S. at 922.
417 The allegations here are not that. The Plaintiffs allege that the
418 Enacted Plans contain unconstitutional racial gerrymanders; they do not
419 challenge them as failed efforts possibly intended to comply with federal law.
420 Thus, it would take invidious discrimination to make an Equal Protection case
421 here. The Plaintiffs clarified they “are not alleging invidious” discrimination
422 or “animus” as part of their Equal Protection claim. Trial Tr. 1672:6–8.
423 Without that intent, however, the Plaintiffs cannot meet their required
424 burden. See Abbott, 585 U.S. at 603.
425 Even if we assume the Plaintiffs preserved a benign-motive case, there
426 was insufficient evidence of racial predominance under the Equal Protection
427 Clause. The Plaintiffs rely on the testimony of Dr. Jordan Ragusa, a tenured
428 professor of political science at the College of Charleston, to prove race
429 predominated in the design of the five challenged districts. Trial Tr. 968:16–
430 971:10. We accepted Dr. Ragusa as an expert in quantitative methods and
431 analysis, the modeling of electoral districting, and American politics, Trial
432 Tr. 980:17–25, and allowed his explanation as to whether he disentangled the
433 effects of race, partisanship, and traditional redistricting principles on the
434 Enacted Plans, Trial Tr. 981:9–18.

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435 Dr. Ragusa conducted a statistical analysis comparing Census data to

436 the Enacted Plans and created multivariate logistic-regression models of the
437 information. Trial Tr. 981:19–982:5. In doing so, the Plaintiffs contend Dr.
438 Ragusa was able to evaluate the Mississippi Legislature’s decisions made
439 during the redistricting process and determine what factor predominantly
440 influenced its decisions. Trial Tr. 982:6–15. Dr. Ragusa’s regression models
441 showed the effect of the black voting-age population (“BVAP”) was
442 statistically significant in at least one model for all five districts, which Dr.
443 Ragusa testified allowed him to “conclude that race was a significant factor
444 in all five of the challenge[d] districts.” Trial Tr. 982:21–24. The Plaintiffs
445 assert Dr. Ragusa’s regression models sufficiently control for partisanship
446 and other factors and show race was the motivating factor in moving voters
447 in and out of districts. Doc [221], 27–28. Thus, according to the Plaintiffs,
448 their Equal Protection claim was clearly established. Id.
449 The Defendants, however, persuasively discredited those models and
450 articulated how they establish partisanship was just as much a factor in the
451 drawing of district lines as race. Doc [218], 6–7. One problem with Dr.
452 Ragusa’s analysis is that he used what he called the “county envelope”
453 method to determine whether geographical units called census blocks, see
454 Trial Tr. 983:23–986:9 (discussing census blocks), were more likely to be
455 moved into a district based on their racial composition, Trial Tr. 995:4–
456 996:8. The Supreme Court recently concluded that the county-envelope
457 model is flawed because it inadequately accounts for contiguity and
458 compactness. See Alexander, 144 S. Ct. at 1246. Further, even though Dr.
459 Ragusa initially attempted to conclude his findings could not “be dismissed
460 as a simple byproduct of partisan gerrymandering or adherence to th[e]
461 common redistricting principles,” Trial Tr. 983:3–5, he later stated he was
462 “unable to offer definitive proof” of racial gerrymandering because “[t]he
463 analysis can’t disentangle intentional from unintentional racial

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464 discrimination. Both are reasonable explanations for the results . . . but [he]
465 can’t say one way or the other what caused the effect of race. What [he] can
466 say is that race was a factor.” Trial Tr. 1120:12–20.
467 Thus, at most, the Plaintiffs’ expert’s opinion was that race was one
468 factor in the Mississippi Legislature’s redistricting that merged with partisan
469 protection. That is not enough. The Enacted Plans must have
470 predominantly utilized race such that the only rational way to view the
471 districts is “an effort to separate voters” based solely on their race. Shaw,
472 509 U.S. at 649. Because Plaintiffs failed to prove that race was the
473 predominant factor, we do not consider the evidence and specific arguments
474 that two enacted senate districts and three enacted house districts were racial
475 gerrymanders. Without invidious intent, the Plaintiffs cannot establish an
476 Equal Protection violation.
477 IV. SECTION 2 OF THE VOTING RIGHTS ACT
478 A. Private Right of Action Under Section 2
479 We start with the Defendants’ argument that Section 2 of the Voting
480 Rights Act cannot be enforced by private parties. They acknowledge
481 foreclosure of the issue in the Fifth Circuit because of a recent opinion
482 recognizing such a right. See Robinson, 86 F.4th at 588. The Defendants
483 present their no-private-right-of-action arguments to preserve the issue for
484 later review.
485 Though the Robinson holding is binding on this court, that opinion’s
486 explanation was brief, responding in kind to the limited argument made by
487 Louisiana in that appeal. Further review of the private-right-of-action issue
488 in the present case may occur, and we include additional analysis now.
489 The Robinson court concluded the issue was essentially foreclosed by
490 a Fifth Circuit precedent holding that Section 2 of the Voting Rights Act
491 abrogated state sovereign immunity. Id. (citing OCA-Greater Hous. v. Texas,

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492 867 F.3d 604, 614 (5th Cir. 2017)). The court determined that the abrogation
493 was not without purpose and that private individuals had been granted a right
494 to sue under Section 2. Id.
495 The Robinson court did not discuss the revamped analysis used by the
496 Supreme Court since 2001 for determining whether a congressional
497 enactment may be enforced by private individuals. See Gonzaga Univ. v. Doe,
498 536 U.S. 273, 284 (2002); Alexander v. Sandoval, 532 U.S. 275, 286 (2001).
499 That analysis first examines the relevant statute for an explicit grant of a right
500 to sue. See, e.g., Gonzaga Univ., 536 U.S. at 283–84. Absent such welcomed
501 textual clarity, a private cause of action may be implied when a statute
502 (1) contains rights-creating language and (2) displays “an intent ‘to create
503 . . . a private remedy.’” Id. at 284 (quoting Sandoval, 532 U.S. at 286).
504 An overlapping though separate inquiry is “whether a statutory
505 violation may be enforced through [42 U.S.C.] § 1983.” Id. at 283.
506 “Plaintiffs suing under § 1983 do not have the burden of showing an intent
507 to create a private remedy because § 1983 generally supplies a remedy for the
508 vindication of rights secured by federal statutes.” Id. at 284. Therefore, if
509 “a plaintiff demonstrates that a statute confers an individual right, the right
510 is presumptively enforceable by § 1983.” Id.
511 In looking for congressionally created private rights that can be
512 protected under Section 1983, the Gonzaga and Sandoval opinions rejected
513 earlier, less-demanding approaches for deciding when Congress has created
514 a private right in a statute. See id. at 282–83; see also Sandoval, 532 U.S. at
515 287 (stating the Supreme Court had “sworn off the habit of venturing beyond
516 Congress’s intent” on whether a statute created private rights).
517 We start with the text of Section 2 of the Voting Rights Act:
518 (a) No voting qualification or prerequisite to voting or
519 standard, practice, or procedure shall be imposed or applied by

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520 any State or political subdivision in a manner which results in a

521 denial or abridgement of the right of any citizen of the United
522 States to vote on account of race or color, or in contravention
523 of the guarantees set forth in section 10303(f)(2) of this title, as
524 provided in subsection (b).
525 (b) A violation of subsection (a) is established if, based on
526 the totality of circumstances, it is shown that the political
527 processes leading to nomination or election in the State or
528 political subdivision are not equally open to participation by
529 members of a class of citizens protected by subsection (a) in
530 that its members have less opportunity than other members of
531 the electorate to participate in the political process and to elect
532 representatives of their choice. The extent to which members
533 of a protected class have been elected to office in the State or
534 political subdivision is one circumstance which may be
535 considered: Provided, That nothing in this section establishes a
536 right to have members of a protected class elected in numbers
537 equal to their proportion in the population.
538 52 U.S.C. § 10301.
539 There certainly is an emphasis on rights in subsection (a) when it
540 prohibits states taking actions that “result[] in a denial or abridgement of the
541 right . . . to vote.” § 10301(a). Less obvious is textual language revealing a
542 congressional intent to provide for a private remedy. In considering how to
543 evaluate what Section 2 does and does not state, we find it useful to review
544 an Eighth Circuit opinion issued after the Fifth Circuit’s Robinson opinion.
545 See Arkansas State Conf. NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204
546 (8th Cir. 2023). There, the majority held Section 2 provided no private right
547 of action. Id. at 1206–07. It also determined that the plaintiffs had neither
548 included in their complaint nor made a meaningful argument that their rights
549 could be enforced using Section 1983. Id. at 1218. The Plaintiffs in the case
550 before us included Section 1983 in their complaint as one of the bases for the
551 suit, thus there is no waiver of the argument. Amended Comp. ¶ 11.

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552 With respect for the Eighth Circuit majority, we find Chief Judge
553 Smith’s dissent in that case to express the more persuasive analysis. See
554 Arkansas State Conf. NAACP, 86 F.4th at 1218–24 (Smith, C.J., dissenting).
555 Of course, we are bound by Robinson regardless of which opinion persuades.
556 Still, we explain what we find persuasive about the dissent.
557 The Eighth Circuit majority and dissent each discuss a 1996 Supreme
558 Court opinion in which a plurality stated that “the existence of the private
559 right of action under Section 2 . . . has been clearly intended by Congress
560 since 1965.” Morse v. Republican Party of Va., 517 U.S. 186, 232 (1996)
561 (plurality opinion) (quoting VOTING RIGHTS EXTENSION, S. REP. NO. 97-417
562 (1982), 30, as reprinted in 1982 U.S.C.C.A.N. 177)). Though we find that a
563 majority of the Morse Court agreed with that part of the plurality opinion, it
564 may have been dicta. See Arkansas State Conf. NAACP, 86 F.4th at 1215.
565 It was not until a little more than 35 years after the Voting Rights Act
566 was enacted that the Supreme Court articulated a test for determining
567 whether Congress has created a private right of action to enforce a particular
568 enactment. See Sandoval, 532 U.S. at 286.
569 Even if the Morse statement is dicta, the Fifth Circuit has held that it
570 is generally bound by Supreme Court dicta, especially when it is “recent and
571 detailed.” Gearlds v. Entergy Servs., Inc., 709 F.3d 448, 452 (5th Cir. 2013).
572 The Morse opinion is neither particularly recent nor detailed, but the Fifth
573 Circuit seemingly would tread cautiously before taking a different path. As
574 to the second issue — that the decision might be questionable because it
575 predates Sandoval — we find that the Supreme Court has told inferior courts
576 to remain faithful to its on-point precedent: “[I]f a precedent of this Court
577 has direct application in a case, yet appears to rest on reasons rejected in some
578 other line of decisions, the Court of Appeals should follow the case which
579 directly controls, leaving to [the Supreme Court] the prerogative of

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580 overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 237 (1997)
581 (citation omitted).
582 Also weighing against any court’s marking its own path is that, before
583 Sandoval and continuing with quite recent opinions, there has been
584 substantial caselaw in which “the Federal Government and individuals have
585 sued to enforce [Section] 2, and injunctive relief [was held to be] available in
586 appropriate cases to block voting laws from going into effect.” Shelby County,
587 570 U.S. at 537 (citations omitted). The existence of a private right of action
588 in opinions such as Shelby County has simply been assumed by courts.
589 Indeed, for decades, Supreme Court and circuit court opinions have resolved
590 Section 2 cases brought by private parties without addressing whether there
591 was even a right for those parties to sue.
592 Eighth Circuit Chief Judge Smith reviewed this same history and
593 expressed prudent caution:
594 Furthermore, since the Court decided Morse, “scores if not
595 hundreds of cases have proceeded under the assumption that
596 Section 2 provides a private right of action. All the while,
597 Congress has consistently reenacted the VRA without making
598 substantive changes, impliedly affirming the previously
599 unanimous interpretation of Section 2 as creating a private
600 right of action.” Coca [v. City of Dodge City, 669] F. Supp. 3d
601 [1131, 1140 (D. Kan. 2023)]. . . . Until the Supreme Court
602 instructs otherwise, I would hold that [Section] 2 contains an
603 implied private right of action.
604 Arkansas State Conf. NAACP, 86 F.4th at 1223–24 (Smith, C.J., dissenting).
605 Finally, few congressional enactments have had a more profound
606 effect on the country than the Voting Rights Act of 1965, and a large
607 percentage of the enforcement actions under the Voting Rights Act have been
608 brought by private individuals. Though the following does not come from
609 statutory text, it is noteworthy that on the page of the Senate Report

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610 immediately following the discussion of what we now call the Senate Factors
611 appears this assertion: “the Committee reiterates the existence of the private
612 right of action under Section 2, as has been clearly intended by Congress
613 since 1965. See Allen v. Board of Elections, 393 U.S. 544 (1969).” S. REP.
614 NO. 97-417, at 30.
615 If a court now holds, after almost 60 years, that cases filed by private
616 individuals were never properly brought, it should be the Supreme Court,
617 which has the controlling word on so momentous a change. Regardless, we
618 are bound by the Fifth Circuit Robinson opinion that the Plaintiffs may
619 properly bring this suit to enforce their rights under the Voting Rights Act.
620 B. The Gingles Framework
621 To succeed in proving a Section 2 vote-dilution claim, plaintiffs must
622 first satisfy the three Gingles preconditions. Milligan, 599 U.S. at 18. “First,
623 the minority group must be sufficiently large and [geographically] compact
624 to constitute a majority in a reasonably configured district.” Id. (alteration
625 in original) (quotation marks and citation omitted). A district is reasonably
626 configured when it complies “with traditional districting criteria, such as
627 being contiguous and reasonably compact.” Id. Second, the minority group
628 must be politically cohesive. Id. Third, the white majority must be shown to
629 vote sufficiently as a bloc to usually defeat the minority-preferred candidate.
630 Id. “The third precondition, focused on racially polarized voting,
631 ‘establish[es] that the challenged districting thwarts a distinctive minority
632 vote’ at least plausibly on account of race.” Id. at 19 (alteration in original)
633 (quoting Growe v. Emison, 507 U.S. 25, 40 (1993)).
634 If a plaintiff fails to establish any one of these three preconditions, a
635 court need not consider the others nor continue the analysis. See League of
636 United Latin Am. Citizens v. Perry, 548 U.S. 399, 425 (2006) [hereinafter
637 LULAC v. Perry].

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638 The first and second Gingles preconditions “are needed to establish
639 that the minority has the potential to elect a representative of its own choice
640 in some single-member district.” Emison, 507 U.S. at 40. The second and
641 third Gingles preconditions “are needed to establish that the challenged
642 districting thwarts a distinctive minority vote by submerging it in a larger
643 white voting population.” Id. “Unless these points are established, there
644 neither has been a wrong nor can be a remedy.” Id. at 40–41.
645 Although “the Gingles requirements cannot be applied mechanically
646 and without regard to the nature of the claim[,] . . . [i]t remains the rule . . .
647 that a party asserting [Section] 2 liability must show by a preponderance of
648 the evidence” that all three preconditions are met. Bartlett v. Strickland, 556
649 U.S. 1, 19–20 (2009). The Plaintiffs must meet this burden, and “[a]ny lack
650 of evidence in the record regarding a violation of the Voting Rights Act . . .
651 must be attributed to” the Plaintiffs. League of United Latin Am. Citizens
652 #4552 v. Roscoe Indep. Sch. Dist., 123 F.3d 843, 846 (5th Cir. 1997).
653 Once a plaintiff sufficiently establishes the three threshold
654 preconditions, he must then “show, under the totality of the circumstances,
655 that the political process is not equally open to minority voters,” which, in
656 turn, establishes a Section 2 violation. Milligan, 509 U.S. at 18 (quotation
657 marks and citation omitted). Courts are guided by factors identified by the
658 Supreme Court in their totality-of-the-circumstances analyses. League of
659 United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 849
660 (5th Cir. 1993) (en banc) [hereinafter LULAC v. Clements]; Robinson, 86
661 F.4th at 589 n.2. We will identify and analyze these factors after reviewing
662 the three preconditions.
663 1. Gingles Precondition One
664 “The first Gingles precondition focuses on [the] geographical
665 compactness and numerosity” of the minority population. Robinson, 86

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666 F.4th at 589 (citing Milligan, 599 U.S. at 18). Under this precondition, a
667 plaintiff is required to establish that the minority population forms a
668 sufficient majority in a district to have the potential to elect a minority-
669 preferred candidate if there is political cohesion. Emison, 507 U.S. at 40. To
670 do so, the plaintiff “must show by a preponderance of the evidence that the
671 minority population in the potential election district is greater than 50
672 percent.” Strickland, 556 U.S. at 19–20. “This percentage is analyzed in
673 terms of the [BVAP] because only eligible voters can affect the Gingles
674 analysis.” Robinson, 86 F.4th at 590. If the BVAP is greater than 50 percent,
675 it must also be sufficiently compact such that a reasonably configured
676 majority-minority district can be drawn. See LULAC v. Perry, 548 U.S. at
677 433.
678 This first precondition is satisfied as follows:
679 Where an election district could be drawn in which minority
680 voters form a majority but such a district is not drawn, or where
681 a majority-minority district is cracked by assigning some voters
682 elsewhere, then — assuming the other Gingles factors are also
683 satisfied — denial of the opportunity to elect a candidate of
684 choice is a present and discernible wrong that is not subject to
685 the high degree of speculation and prediction attendant upon
686 the analysis of crossover claims.
687 Strickland, 556 U.S. at 18–19. It also “requires the possibility of creating
688 more than the existing number of reasonably compact districts with a
689 sufficiently large minority population to elect candidates of its choice.”
690 LULAC v. Perry, 548 U.S. at 430 (quoting Johnson v. De Grandy, 512 U.S.
691 997, 1008 (1994)). Thus, it must be shown that a large, geographically
692 compact minority population exists that could be part of an additional,
693 reasonably configured majority-minority district that the State did not draw.
694 See Milligan, 599 U.S. at 20.

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695 The Defendants argue that after the Supreme Court’s recent Milligan
696 decision, there is another requirement — a precondition to the precondition
697 as it were. They rely on Justice Kavanaugh’s concurrence in that opinion to
698 assert that a court must first find that the districts as legislatively drawn
699 combined or divided the black population. Before quoting the part of the
700 concurring opinion on which the Defendants rely, we address a part of the
701 majority opinion they ignore. The majority opinion described the first
702 precondition this way:
703 First, the “minority group must be sufficiently large and
704 [geographically] compact to constitute a majority in a
705 reasonably configured district.” Wisconsin Leg[.,] 595 U. S. [at
706 400] (per curiam) (citing Gingles, 478 U.S. at 46–51, 106 S. Ct.
707 2752). A district will be reasonably configured, our cases
708 explain, if it comports with traditional districting criteria, such
709 as being contiguous and reasonably compact.
710 Milligan, 599 U.S. at 18 (first alteration in original) (citing Alabama Legis.
711 Black Caucus, 575 U.S. at 272). Justice Kavanaugh joined the majority’s
712 analysis of the Gingles preconditions. Id. at 42 (Kavanaugh, J., concurring in
713 part and concurring in the judgment). It is difficult to interpret anything else
714 Justice Kavanaugh wrote as being an alteration of what he accepted as the
715 majority’s understanding of precondition one.
716 Instead of revising precondition one, his concurring opinion was
717 responding to the State’s argument that Gingles needed to be abandoned
718 because it “inevitably requires a proportional number of majority-minority
719 districts.” Id. at 42–43. That is not what Gingles demands, Justice
720 Kavanaugh wrote, as that would require the combining of “geographically
721 dispersed minority voters into unusually shaped districts, without concern
722 for traditional districting criteria such as county, city, and town lines.” Id. at
723 43. “Gingles requires the creation of a majority-minority district only when,
724 among other things, (i) a State’s redistricting map cracks or packs a large and

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725 geographically compact minority population and (ii) a plaintiff’s proposed

726 alternative map and proposed majority-minority district are reasonably
727 configured.” Id. (quotation marks and citations omitted).
728 We view this portion of Justice Kavanaugh’s opinion as simply
729 explaining the natural effect of satisfying precondition one. The effect is that
730 if a reasonably configured majority-minority district can be formed that
731 satisfies traditional redistricting principles and does not join “geographically
732 dispersed minority voters into unusually shaped districts,” then minority
733 voters have been cracked from that minority district to form majority
734 districts. Id. Justice Kavanaugh also agreed that analyzing the preconditions
735 “requires in certain circumstances that courts account for the race of voters
736 so as to prevent the cracking or packing . . . of large and geographically
737 compact minority populations.” Id. at 44.
738 We conclude, then, that Justice Kavanaugh’s concurring opinion
739 cannot be read as his abandonment of almost 40 years of jurisprudence
740 applying Gingles. We still, however, need to understand what compactness
741 of a district means. We see it as an imprecise concept, but we know we are
742 to consider traditional districting principles like communities of interest and
743 maintaining traditional boundaries. LULAC v. Perry, 548 U.S. at 433.
744 “Communities of interest vary between states, generally defined by the given
745 state’s districting guidelines.” Robinson, 86 F.4th at 590; see Milligan, 599
746 U.S. at 20–21. The districting guidelines applicable here require
747 communities that share a common interest, are likely to have similar
748 legislative concerns, and might benefit from cohesive representation in the
749 state legislature. PTX-001, 20.
750 In Milligan, the Supreme Court concluded that “proposed maps
751 [which] split the same number of county lines as (or even fewer county lines
752 than) the State’s map” and contained no “tentacles, appendages, bizarre

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753 shapes, or any other obvious irregularities” can strongly support the first
754 Gingles precondition. 599 U.S. at 20 (emphasis in original) (quoting Singleton
755 v. Merrill, 582 F. Supp. 3d 924, 1011 (N. D. Ala. 2022)). We will look for that
756 in the Plaintiffs’ Illustrative Plans.
757 The Court further identified that equal populations, contiguity, and
758 respect for existing political subdivisions like counties, cities, and towns
759 would allow illustrative maps to satisfy traditional districting criteria and
760 strongly suggest black voters could constitute a majority in a reasonably
761 configured district. Id. In analyzing communities of interest, the Court
762 concluded that even urban and rural communities can be configured into
763 reasonably compact districts if they share cultural, economic, social, and
764 educational ties despite the geographical distance. See id. at 19–21; LULAC
765 v. Perry, 548 U.S. at 434–35.
766 Race can also be considered in drawing illustrative districts to satisfy
767 the first Gingles precondition. See Milligan, 599 U.S. at 31. Certainly, to
768 demonstrate that reasonably configured, majority-minority districts could be
769 drawn, race must be considered, but race cannot be “the predominant factor
770 in drawing district lines.” Id. Here, William S. Cooper testified as an expert
771 for the Plaintiffs in redistricting relevant to the first Gingles precondition, and
772 he drew the Illustrative Plans the Plaintiffs presented as part of his overall
773 analysis. Cooper testified that he was aware of and considered race as
774 required by Gingles when drawing his maps, but it did not predominate in his
775 analysis. Trial Tr. 109:2–5; 152:20–21. We will explore the specifics of
776 Cooper’s testimony when we examine each of the illustrative districts. For
777 now, it suffices to say that we have found as to some of the districts, but not
778 all, race predominated and traditional factors were not followed.
779 Besides arguing that race predominated, the Defendants argue that
780 Cooper did not take in account the traditional redistricting principle of

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781 “political performance.” As we mentioned earlier, the best explanation of

782 that phrase offered by the Defendants is that it refers to length of service and
783 incumbency. To the extent this can be seen as, among other interests,
784 protecting incumbent-constituent relationships and maintaining hard-earned
785 legislative expertise, that is a valid state interest but should not be deferred to
786 at the cost of “constitutional norms.” League of United Latin Am. Citizens,
787 Council No. 4434 v. Clements, 986 F.2d 728, 763 (5th Cir.), rev’d en banc, 999
788 F.2d 831 (5th Cir. 1993) (quoting White v. Weiser, 412 U.S. 783, 791 (1973)).
789 Much of the law on incumbent protection is in the context of equal
790 protection claims. For example, the Supreme Court has held that “avoiding
791 contests between incumbent[s]” is a legitimate state goal. Karcher v. Daggett,
792 462 U.S. 725, 740 (1983). Similarly, we conclude that political performance,
793 a concept that gives weight to the length of service of incumbents and their
794 relationships with constituents, is a valid consideration under the first Gingles
795 precondition.
796 Courts must consider each illustrative district independently to
797 “determine if the illustrative districts have similar needs and interests
798 beyond race.” Robinson, 86 F.4th at 590; see LULAC v. Clements, 999 F.2d
799 at 877–94 (analyzing each district in detail). An illustrative map proposing
800 overall compactness improvements does not necessarily meet Gingles one as
801 to each illustrative district within the map. See LULAC v. Clements, 999 F.2d
802 at 877–94. Thus, the key consideration here is that if one of the Illustrative
803 Plans presented by the Plaintiffs identifies a reasonably configured, compact
804 majority-minority district that respects traditional redistricting principles,
805 the first Gingles precondition is met. See Milligan, 599 U.S. at 20. We discuss
806 each of the Plaintiffs’ Illustrative Plans and their respective districts to
807 determine whether each satisfies the first Gingles precondition.

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808 a. An Overview of the Plaintiffs’ Illustrative Plans

809 As noted, the Plaintiffs presented the expert testimony of William
810 Cooper, who was tendered and accepted as an expert in redistricting,
811 demographics, and census data, to prove the first Gingles precondition. Trial
812 Tr. 84:11–14, 85:23–86:1. Cooper works with different organizations and
813 states as a private consultant in redistricting work. He has prepared
814 redistricting maps in approximately 750 jurisdictions in 45 states and has
815 been qualified as a redistricting and demographics expert in over 50 voting-
816 rights cases in 20 states since 1987. Trial Tr. 78:21–79:5, 80:10–13, 81:24–
817 82:5; See PTX-001, 81–91. In Mississippi, Cooper has over 30 years of
818 experience in voting cases and has served as a redistricting and demographics
819 expert in multiple statewide cases. Trial Tr. 82:15–18, 83:10–84:10.
820 In preparation for this trial, Cooper developed two Illustrative
821 Legislative Plans — the Illustrative Senate Plan and the Illustrative House
822 Plan — to assess whether Mississippi’s black population is sufficiently
823 geographically compact to create additional majority-minority districts. Trial
824 Tr. 86:5–17. We found Cooper’s extensive experience, particularly in
825 Mississippi cases, qualified him to testify as an expert in redistricting and
826 demographics relevant to this case.
827 We first offer the two statewide Illustrative Plans. Each shows the
828 location of the Plaintiffs’ illustrative additional majority-minority districts:
829 four senate districts and three house districts.

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830 This is the map showing all the illustrative senate districts:

831
832 The Enacted Senate Plan has 50.36 percent of black voters living in
833 black-majority districts and 84.33 percent of white voters living in white-
834 majority districts. PTX-001, 50. In Cooper’s Illustrative Senate Plan, 58.39
835 percent of black voters live in black-majority districts and 75.24 percent of
836 white voters live in white-majority districts. Id. By modifying 41 of the 52
837 enacted senate districts, the Illustrative Senate Plan reduces the alleged

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838 representation gap found in the Enacted Senate Plan by 17.13 percent. Trial
839 Tr. 98:1–12; PTX-001, 28, 67–68.
840 This is the map showing all the illustrative house districts.

841
842 The Enacted House Plan has 62.38 percent of black voters living in
843 black-majority districts and 82.92 percent of white voters living in white-

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844 majority districts. PTX-001, 74. In Cooper’s Illustrative House Plan, 64.78
845 percent of black voters live in black-majority districts and 80.12 percent of
846 white voters live in white-majority districts. Id. The Illustrative House Plan
847 modifies 33 of the 122 enacted house districts and improves the alleged
848 representation disparity found in the Enacted House Plan by 5.19 percent. Id.
849 We next consider the testimony explaining the drawing of these maps.
850 To develop his Illustrative Plans, Cooper’s initial analysis began with
851 black-population statistics in Mississippi. Cooper used several data points,
852 including population and geographic data from the 1990 to 2020 Censuses,
853 socioeconomic data published by the Census Bureau, Mississippi precinct
854 boundaries, and incumbent-address information. PTX-001, 93–94. The
855 specific Census population data set Cooper used is the complete population
856 file designed by the Census Bureau for use by states in legislative
857 redistricting. Id. Cooper then used the well-known redistricting software
858 “Maptitude for Redistricting” to compile the data and draw his Illustrative
859 Plans. 3 Id. Maptitude displays various kinds of voter data and precinct lines
860 and permits the map-drawer to see precincts shaded in different colors based
861 on their BVAP. Doc [201], 78, 109–110.
862 According to the 2020 Census data, the non-Hispanic White
863 population comprises 55.35 percent of the total population in Mississippi. See
864 PTX-001, 9. African Americans are the next largest racial/ethnic category,
865 representing 37.94 percent of the total population in 2020, which is the
866 highest proportion of any state. Id. Mississippi’s overall population grew by
867 116,621 persons from 2000 to 2020. Doc [220], 16–17. The African
868 American population alone grew by 81,905 persons, making it the largest

_____________________
3
“This software is deployed by many local and state governing bodies across the
country for redistricting and other types of demographic analysis.” PTX-1, 92.

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869 element of Mississippi’s population growth. PTX-001, 10; Trial Tr. 87:5–13.
870 Mississippi’s BVAP also increased from 33.29 percent to 36.14 percent
871 during that same period. PTX-001, 6, 10–11. In contrast, Mississippi’s non-
872 Hispanic White population fell by 88,831, and the non-Hispanic White VAP
873 dropped from 64.16 percent to 57.76 percent from 2000 to 2020. PTX-001,
874 6, 10–11; Trial Tr. 87:5–13.
875 Cooper used Mississippi’s Planning and Development Districts
876 (“PDDs”) to evaluate the state’s population change at the regional level.
877 Trial Tr. 90:23–24. These PDDs were designed to “provide a consistent
878 geographic base for the coordination of Federal, State, and local development
879 programs.” PTX-020, 1 (Exec. Order). They were also “organized with
880 boundaries which represent natural, social, and economic relationships.” Id.
881 at 2. Cooper used these PDDs as “a way to organize [Mississippi] in[to]
882 regions . . . that actually matter today.” Trial Tr. 90:23–24. However, the
883 PDD boundaries have remained unchanged since at least 1971. See PTX-020.
884 That by itself suggests they are poorly designed tools for the purposes of
885 evaluating legislative districts.4

_____________________
4
The Plaintiffs filed a pretrial motion seeking judicial notice of facts related to
PDDs, and we deferred ruling. See Pls.’ Mot. [196]. Under Federal Rule of Evidence
201(b), a “court may judicially notice a fact that is not subject to reasonable dispute because
it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” Some facts the Plaintiffs mentioned in their motion were introduced into
evidence, thus mooting those issues. For example, former Mississippi Governor John Bell
Williams’s 1971 executive order was introduced as PTX-020. See Mem. [197] at 6. Cooper
then testified about the general purpose of PDDs. See, e.g., Trial Tr. at 90–91.
Beyond what was admitted into evidence, the Plaintiffs have not established that
other potentially relevant facts satisfy Rule 201. For example, they have not shown that we
should take judicial notice of facts found on a trade association’s website. See Pls.’ Mem.
[197] at 6. Even if we were to take judicial notice of the remaining facts, it would not change
the conclusion that PDDs are ill-suited for legislative districting.

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886 Cooper combined the 2020 Census data and population information
887 provided by the PDDs to determine whether additional majority-minority
888 districts could be drawn in his Illustrative Plans. PTX-001, 16–18. Cooper
889 focused primarily on PDD regions with substantial black populations that
890 experienced double-digit black-population growth or double-digit white-
891 population decline between 2000 and 2020. PTX-001, 18–21; Trial Tr.
892 156:11–157:9, 159:18–160:3. These were the areas in which Cooper “felt it
893 was likely . . . [to] develop additional majority [b]lack districts.” Trial Tr.
894 160:4–8.
895 Cooper’s analysis of Mississippi’s PDDs showed the black population
896 growth at the regional level was concentrated in four PDD regions: Central
897 Mississippi, North Delta, Southern Mississippi, and Three Rivers. Trial Tr.
898 92:1–11; PTX-001, 17. The net black-population growth in these four regions
899 was 120,399 persons between 2000 and 2020, and the white population loss
900 was 7,636 persons. Trial Tr. 92:1–11; PTX-001, 17. Cooper testified the net
901 black-population growth in these four regions equates to the drawing of two
902 100 percent black senate districts and about five 100 percent house districts,
903 thus suggesting “it would be very easy to draw additional majority-[b]lack
904 districts in the state of Mississippi in these specific areas.” Trial Tr. 95:3–8.
905 By focusing on these areas, Cooper further asserted his Illustrative Plans
906 “prove superior or equal to the 2022 Legislative Plans across almost every
907 conceivable race-neutral quantitative measure of community of interest.”
908 PTX-001, 21.
909 While we credit Cooper’s overall analysis and drawing of the
910 Illustrative Plans as viable methods for us to consider when determining
911 compactness, we find the evidence does not support his use of PDDs as
912 communities of interest. The PDDs were created about 60 years ago, PTX-
913 0020, and they are “voluntary nonprofit corporations,” Trial Tr. 156:5–7,
914 that have differing priorities and common interests, DTX-016. Further,

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915 there was testimony that PDDs are not public civil divisions for which the
916 Census Bureau reports. Trial Tr. 154:5–15. The Plaintiffs even concede
917 PDDs do not help further analysis of the first Gingles precondition, stating
918 the court “can eliminate the concept of [PDDs] and still come up with . . .
919 similar” districts. See Trial Tr. 156:25–157:9, 158:2–5, 160:2–3. There is also
920 no evidence the Mississippi Legislature considered PDDs in drawing the
921 Enacted Plans. See MISS. CODE ANN. § 5-3-101. We find the use of PDDs in
922 Cooper’s analysis to be unhelpful.
923 Of importance, though, is that the 2022 Enacted Plans contained the
924 same number of majority-minority districts as the previously enacted plans
925 despite the admitted black-population growth and white-population decline.
926 PTX-001, 22–25, 45–46, 54–57, 68–70, 177–79, 244–46, 498–501, 590–93;
927 JTX-002; JTX-004; JTX-005. Indeed, both the state senate and state house
928 have only added one additional majority-minority district in their respective
929 legislative plans since 2002. Trial Tr. 89:12–90:1. The additional majority-
930 minority senate district resulted from a court order four years ago. See
931 Thomas, 961 F.3d at 800–01. Trial Tr. 90:2–8.
932 Cooper testified that he developed the Illustrative Plans here by using
933 traditional redistricting principles, including population equality,
934 compactness, contiguity, communities of interest, traditional political
935 boundaries, non-dilution of minority voting strength, and incumbent
936 pairings. Trial Tr. 105:4–107:12. He further testified that he balanced the
937 traditional redistricting principles such that none predominated over the
938 other when drawing the Illustrative Plans. Trial Tr. 107:13–22, 109:2–6,
939 123:13–14. We credit this statement as to some of his illustrative districts,
940 but not every illustrative district.
941 The Defendants challenged whether Cooper properly used these
942 traditional redistricting principles. At trial, Cooper was asked to review the

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943 legislative redistricting process and the factors the Standing Joint Committee
944 was required to consider — one person, one vote; contiguity of the districts;
945 political performance; compliance with all state and federal laws such as
946 Section 2 of the Voting Rights Act; compactness; and minimalization of
947 county and precinct splits. JTX-010, at 8-14; Trial Tr. 168:20. The Standing
948 Joint Committee examined the significant population shifts throughout
949 Mississippi where major areas experienced population loss and indicated this
950 necessitated the collapse of two districts to be moved to the areas with the
951 largest increase in population. JTX–010, 11–14.
952 Cooper acknowledged that he neither examined the many competing
953 interests the Mississippi Legislature examines when drawing maps nor
954 considered political performance while drawing the Illustrative Plans. Trial
955 Tr. 225:21–226:2. On the other hand, the Defendants failed to provide any
956 detail as to how the failure to consider those interests impacted any of
957 Cooper’s illustrative districts. The Defendants’ evidence was fairly brief
958 videos of each committee chair explaining to his chamber what that
959 committee had tried to do. General statements about political performance
960 were made. Nothing in that evidence addresses how Cooper’s failure or
961 inability to consider political performance invalidated any of the illustrative
962 districts. Even if “political performance” is a trump card, which it is not, the
963 Defendants must at least place it face up on the table.
964 The Defendants offered the testimony of Dr. Thomas Brunell to
965 prove that the Plaintiffs did not meet their burden under Gingles precondition
966 one. See generally Trial Tr. 1242–1495. Dr. Brunell is a professor with a
967 doctorate in political science at the University of Texas at Dallas, where he
968 has been employed since 2005. DX-003, 22. He is an appointed member of
969 the Census Scientific Advisory Committee for the Census Bureau where he
970 provided guidance and assistance related to redistricting development
971 procedures. Trial Tr. 1250:18–1251:13. Dr. Brunell was accepted at trial as

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972 an expert in redistricting, elections, the Voting Rights Act, and

973 representation and statistics. Trial Tr. 1253:24–1254:2. Although the
974 Defendants offered Dr. Brunell’s testimony specifically to challenge
975 Cooper’s methods, Dr. Brunell agreed Cooper was not maximizing the
976 number of majority-minority districts. Trial Tr. 1336:1–9.
977 Regarding compactness and split precincts, Dr. Brunell opined that
978 there were only marginal differences between the compactness scores of the
979 Enacted Plans and Cooper’s Illustrative Plans. DX-003, 12–14. Cooper
980 considered three mathematical compactness scores generated by the
981 accepted Maptitude software and asserted that, on average, the Illustrative
982 Senate Plan is slightly more compact than the Enacted Senate Plan and the
983 compactness of the Illustrative and Enacted House Plans are comparable.
984 Trial Tr. 106:3–13, 111:7–112:24. That is generally true.
985 The only geographical boundaries Mississippi law requires be
986 followed “as nearly as possible” are county, municipal, and precinct lines.
987 MISS. CODE ANN. § 5-3-101. Both the Enacted Plans and Illustrative Plans
988 satisfied this requirement. The Illustrative House Plan has the same number
989 of split counties and modestly fewer split municipalities and precincts
990 compared to the Enacted House Plan. DX-003, 15. The Illustrative Senate
991 Plan splits fewer counties but has almost the same number of total county
992 splits as the Enacted Senate Plan. Dr. Brunell created a chart to show the
993 comparisons.

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994
995 Dr. Brunell’s chart supports Cooper’s statement that “[t]here’s very little
996 difference” between the Enacted Plans and the Illustrative Plans. Trial Tr.
997 112:22–23. The Illustrative Plans perform only a “little better[, n]ot a lot but
998 a little,” better than the Enacted Plans, such that “[t]hey’re almost the
999 same.” Trial Tr. 112:10–11, 22–23.
1000 As to incumbent pairings, Dr. Brunell noted the Enacted Plans have
1001 only one incumbent pairing in the senate and three pairings in the house. DX-
1002 003, 14. Separating incumbents into different districts was an important
1003 factor the Mississippi Legislature considered when drawing its plans. JTX-
1004 10, 12:3–15, 20:19–24; JTX-011, 8:5–10. That is a valid consideration for the
1005 legislature. See Vera, 517 U.S. at 963–64; League of United Latin Am. Citizens,
1006 Council No. 4434, 986 F.2d at 763. The Illustrative Plans, however, have
1007 more incumbent pairings than the Enacted Plans, despite incumbency
1008 protection being an important consideration. DX-003, 14. Cooper testified
1009 he was unable “to obtain complete information about all of the incumbents,”
1010 and it was sometimes impossible “to keep all incumbents in separate
1011 districts.” Trial Tr. 106:23–107:12. Nonetheless, the Enacted Plans are more
1012 favorable as to incumbency protection.
1013 We found at trial that Dr. Brunell is qualified to testify as an expert in
1014 redistricting and demographics, but the following discussion of the individual
1015 illustrative districts will reveal some of his testimony that we do not credit.

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1016 b. Illustrative Senate District 2

1017
1018 Illustrative SD 2 is an additional majority-minority district with a
1019 BVAP of 50.91 percent that Cooper asserts can be drawn in Tunica and
1020 DeSoto Counties. PTX-001, 29–34, 324. We reproduce the western-most
1021 part of the map. DeSoto County contains the fastest growing black
1022 population in Mississippi. Trial Tr. 130:2–3. Cooper combined some of the
1023 population from three enacted senate districts throughout DeSoto County,
1024 to create Illustrative SD 2 in addition to maintaining a current majority-black
1025 district. PTX-001, 29–34. Cooper divided the City of Horn Lake and its
1026 substantial black population once, keeping most of it in a single district, and
1027 eliminated the splitting of Tate and Panola Counties under the Enacted
1028 Senate Plan. PTX-001, 29–34; Trial Tr. 131:23–132:8. Cooper testified that
1029 he followed natural boundaries by tracking the Highway 61 transportation
1030 and economic corridor, allowed for population growth by including precincts

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1031 with low BVAP, and kept the population deviation on the lower end of the
1032 required 5-percent deviation. Trial Tr. 131:14–20, 190:15–191:5.
1033 Pamela Hamner also testified for the Plaintiffs to explain how
1034 Illustrative SD 2 respects communities of interests. Hamner has lived in
1035 DeSoto County for 25 years as a reporter covering northern Mississippi. She
1036 recently ran for political office, which caused her to contact voters and
1037 residents in the areas contained in Illustrative SD 2. Trial Tr. 704:10–14,
1038 705:15–706:4, 710:1–4, 720:5–11. Hamner testified that she received some
1039 threats while campaigning in white communities, though few details were
1040 given. She testified that Highway 61 connects the communities and allows
1041 the residents to travel between towns in DeSoto County for church,
1042 healthcare, entertainment, and other activities. Trial Tr. 723:13–20.
1043 Hamner also explained in detail the economic, education, healthcare, and
1044 numerous other issues the residents are similarly concerned with. Trial Tr.
1045 723:7–12, 714:14–715:6, 727:16–22.
1046 In creating Enacted SD 2, the Mississippi Legislature effectively
1047 cracked the majority-black community in Horn Lake across three districts
1048 and split Horn Lake and the historically black town of Jago rather than
1049 keeping them together like in Illustrative SD 2. Trial Tr. 713:15–714:6, 716:5–
1050 25, 718:7–20. Hamner testified this effectively took away the power of the
1051 black communities to seek representation when the Enacted Plans became
1052 law. Trial Tr. 714:7–13, 715:10–17. We credit that testimony.
1053 The Defendants disputed that Cooper’s methods followed traditional
1054 redistricting principles for this illustrative district. Defendants’ expert Dr.
1055 Brunell opined that Cooper specifically targeted the majority-black precincts
1056 to include in Illustrative SD 2 while excluding the majority-white precincts
1057 to increase the number of black-majority districts. DX-003, 11; Trial Tr.
1058 1336:1–9. On that point, we know that in preparing illustrative districts, the
1059 Supreme Court recognizes their purpose is to show what can be done, i.e.,

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1060 that a reasonably compact majority-minority district can be created that

1061 respects traditional districting principles. Milligan, 599 U.S. at 30. There “is
1062 a difference ‘between being aware of racial considerations and being
1063 motivated by them’” in preparing the maps. Id. (quoting Miller, 515 U.S. at
1064 916). Cooper’s identifying those majority-minority areas was a necessary
1065 part of the exercise.
1066 This district is reasonably compact and satisfies traditional
1067 redistricting factors. Cooper testified that he was not maximizing the number
1068 of majority-minority districts, and Defendants’ expert Dr. Brunell opined the
1069 same. We credit both witnesses’ testimony as it applies to this illustrative
1070 district. Further, there was no evidence offered about how considerations of
1071 political performance affected the districting here. We thus find that
1072 Illustrative SD 2 satisfies the first Gingles precondition.
1073 c. Illustrative Senate District 9

1074

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1075 Illustrative SD 9 is an additional majority-minority district with a

1076 BVAP of 50.95 percent that Cooper asserts can be drawn in Forrest and
1077 Lamar Counties and adjacent to the City of Hattiesburg. PTX-001, 38–41,
1078 324. It includes Rawls Springs, Glendale, and substantial portions of Arnold
1079 Line and West Hattiesburg, and it is drawn primarily around Hattiesburg’s
1080 municipal borders. See PTX-001, 394. Cooper testified this illustrative
1081 district better respects traditional redistricting principles than the Enacted
1082 Senate Plan. Trial Tr. 134:1–14; PTX-001 at 38–41, 247. The Enacted Senate
1083 Plan split Hattiesburg across four districts and went far north “to pick up
1084 pieces of Jones County and Laurel and then on into Jasper County.” PTX-
1085 001, 302. Illustrative SD 9 instead keeps the city almost entirely whole,
1086 follows municipal boundaries extending from Hattiesburg, avoids pairing an
1087 incumbent, and evenly includes and excludes various BVAP precincts. Trial
1088 Tr. 134:19–20, 134:23–135:10, 204:17–25, 205:7–15.
1089 Lay testimony supports the reasonableness of keeping Hattiesburg
1090 together. Dr. Joseph Wesley, a Hattiesburg resident since 1977, explained
1091 that Hattiesburg is the “Hub City” for people from the surrounding areas
1092 near Illustrative SD 9 to come for education, culinary, and economic needs.
1093 Trial Tr. 665:7–9, 676:2–12. He testified Illustrative SD 9 better respects the
1094 geographic boundaries of highways that serve the surrounding areas and
1095 allows easier access to education and healthcare for the communities. Trial
1096 Tr. 679:4–684:9. The common histories and traditions for the black
1097 communities are also centered in Hattiesburg, where the communities are
1098 kept whole through Illustrative SD 9. Trial Tr. 676:13–677:8, 678:3–5. We
1099 credit his unrebutted testimony.
1100 The Defendants presented evidence that the boundary lines of
1101 Illustrative SD 9 followed along the racial lines of larger concentrations of
1102 black populations and split two precincts between Enacted SD 9 and SD 42.
1103 PTX-001, 38–41, 324; Trial Tr. 205:7–15. The Defendants asserted there

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1104 was no race-neutral explanation for Cooper’s redrawing of Illustrative SD 9

1105 in this way because altering either of the split precincts to make them whole
1106 would undermine the 50.95 percent BVAP of Illustrative SD 9 and preclude
1107 Cooper’s racial objective. DX-003, 46; Doc [219], 36. However, the
1108 Defendants’ overlay of Illustrative SD 9’s borders on a racially shaded
1109 precinct map does not demonstrate such clear-cut cherry-picking between
1110 majority-black and majority-white precincts, as several majority-white
1111 precincts just outside Hattiesburg are also within Illustrative SD 9’s borders.
1112 See DX-003, 046.
1113 Here, too, we find that Cooper has created a reasonably compact
1114 district that follows traditional redistricting principles. His purpose, as
1115 Gingles precondition one requires, was to identify whether a reasonably
1116 compact majority-minority district could be formed that respected traditional
1117 redistricting factors. We find that the City of Hattiesburg itself is less split in
1118 the illustrative district. Although Illustrative SD 9 does exclude what we
1119 accept are some majority-white areas, we find the design still leaves the
1120 district reasonably compact. We find this district satisfies Gingles
1121 precondition one.

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1122 d. Illustrative Senate District 17

1123
1124 Illustrative SD 17 is an additional majority-minority district with a
1125 BVAP of 53.54 percent that Cooper asserts can be drawn in the Golden
1126 Triangle and Three Rivers areas. PTX-001, 323–25. SD 17 had an original
1127 BVAP of 29.48 percent in the Enacted Senate Plan. Id.; JTX-049, 4. To
1128 create Illustrative SD 17, Cooper took portions of the black populations from
1129 Enacted SD 6, 7, 8, and 16. PTX-001, 249–50, 386; Trial Tr. 136:7–10.
1130 Cooper testified this better respected black communities along Highway 45
1131 that share socioeconomic and historical interests, followed whole precincts,
1132 and tracked natural boundaries. Trial Tr. 136:7–21, 199:24–200:14, 223:25–
1133 224:3.
1134 Mamie Cunningham, a retired schoolteacher and lifelong resident of
1135 Chickasaw County, testified as to the common interests that Illustrative SD
1136 17 brings together. Trial Tr. 233:2–234:2, 244:17–245:1. Residents in the
1137 area share socioeconomic, civic, economic, educational, and other interests

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1138 across county lines, and the municipalities are connected by natural
1139 boundaries Highway 45 and Alternate Highway 45, which are frequently
1140 traveled by residents to access retail outlets and services. Trial Tr. 245:2–
1141 246:13, 247:14–248:2. Although she resides in Chickasaw County,
1142 Cunningham herself worked in neighboring Monroe and Clay Counties, all
1143 of which are within Illustrative SD 17. Trial Tr. 244:13–245:13. We credit
1144 her testimony in general, but we do not credit her reliance on the fact that a
1145 particular highway goes through the entire district to say a community of
1146 interest exists.
1147 According to the Defendants, however, Cooper “dismantles”
1148 Enacted SD 7 and SD 16 by reducing their BVAPs from 40.08 percent and
1149 63.06 percent to 17.83 percent and 53.54 percent, respectively, to draw
1150 Illustrative SD 17. Doc [219], 27; PTX-001, 324; JTX-049, 3–4. They assert
1151 Cooper crossed PDD boundaries, violating his own redistricting criteria, and
1152 used only public-school-district athletics in his consideration for Illustrative
1153 SD 17 because he did not think black children would be attending private
1154 schools. Trial Tr. 197:1–6, 200:15–204:2. We have already found that the
1155 PDDs are not useful in the analysis, and Cooper’s deviation from them helps
1156 support our earlier finding. On cross, Cooper explained the precinct splits
1157 he created protected incumbents and better preserved other precinct lines,
1158 resulting in fewer splits than the Enacted Plans. Trial Tr. 196:25–198:3.
1159 The Defendants maintain that it is clear Illustrative SD 17 was created
1160 for no reason other than race. They assert Cooper had to dissolve Enacted
1161 SD 7, which elected a minority-preferred white Democratic candidate in
1162 2023, and the dismantling of an existing minority-performing district is not
1163 required under Section 2. Doc [219], 34–35.
1164 This illustrative district splits three major municipalities in the area,
1165 crossing multiple relevant boundaries. It splits Tupelo and captures only
1166 black-majority precincts but excludes white-majority precincts. DX-003, 42.

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1167 It further splits West Point and Amory by crossing PDD and geographic
1168 boundaries that split communities of interest. See PTX-001 at 338; Trial Tr.
1169 136, 197–198. These facts support that Cooper had a racial objective and that
1170 race predominated in his drawing of this district to achieve said objective.
1171 Although he gave his opinion that there was a community of interest because
1172 Illustrative SD 17 follows Highway 45 and the Tennessee-Tombigbee
1173 Waterway from north to south, we do not accept that following those two
1174 transportation corridors supports that the communities they encounter share
1175 interests. Rather, the evidence indicates Cooper combined parts of distinct
1176 communities in an attempt to force one community of interest to exist.
1177 We find that Cooper’s claimed considerations of communities of
1178 interest and lack of a racial objective are not credible. Illustrative SD 17 does
1179 not satisfy the first Gingles precondition.
1180 e. Illustrative Senate District 35

1181

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1182 Illustrative SD 35 is an additional majority-minority district with a

1183 BVAP of 52.12 percent that Cooper asserts can be drawn in Copiah, Simpson,
1184 Lincoln, Lawrence, and Jefferson Davis Counties. PTX-001, 324. Enacted
1185 SD 35 had an original BVAP of 39.38 percent in the Enacted Senate Plan. Id.;
1186 JTX-049, 4. To achieve his illustrative district, Cooper splits Lincoln
1187 County, crossing the county boundary to cut out a portion of the City of
1188 Brookhaven and to incorporate the area between it and the City of Wesson,
1189 which has a “significant Black population.” Trial Tr. 206:15–18, 139:4–7.
1190 Cooper testified Illustrative SD 35 also keeps Copiah and Jefferson Davis
1191 Counties whole; splits only one precinct to keep the City of D’Lo whole;
1192 respects the geographical, transportation, and educational connections along
1193 Highway 51; and respects high-school-sports leagues in the counties. Trial
1194 Tr. 139:1–14, 224:9–225:10; PTX-001, 341, 367.
1195 In redrawing Illustrative SD 35, Cooper split counties and
1196 municipalities to achieve his apparent racially predominant objective. See
1197 Trial Tr. 206:24–207:22; DX-003, 44; PTX-001, 398. By running a narrow
1198 extension south into a portion of Brookhaven, Cooper splits the city between
1199 two districts and includes only predominantly black precincts within
1200 Illustrative SD 35 to reach the desired BVAP. See Trial Tr. 206:24–207:22;
1201 DX-003, 44; PTX-001, 398. This extension into the black precincts of
1202 Brookhaven, not into the whole city, certainly falls into the category of a
1203 “tentacle” that shows the illustrative district does not have a reasonably
1204 compact majority-minority voting-age population.
1205 In defending Illustrative SD 35, Cooper testified that Highway 51 and
1206 Interstate Highway 55 run north from Brookhaven through Hazelhurst and
1207 to Crystal Springs as common boundaries and that a significant number of
1208 Mississippians commute to work via these highways. See Trial Tr. 138-39,
1209 224–25; PTX-001, 398. Nonetheless, the tentacle into Brookhaven excludes

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1210 Interstate 55 and hugs only the east side of Highway 51 to capture the higher
1211 BVAP population of the area. See DX-003, 44; PTX-001, 398.
1212 Plaintiffs’ witness Ashley Wilson, a lifelong resident of the City of
1213 Crystal Springs, testified there were significant community ties between
1214 Brookhaven and Copiah County. See Trial Tr. 873–85. Specifically, many
1215 people in Copiah County and Brookhaven share economic, shopping, work,
1216 hospital, and travel interests that are all connected along Highway 51 and
1217 Interstate 55. Id. These ties, however, are not enough to overcome the
1218 significant county and municipality splits in Illustrative SD 35, nor do they
1219 explain how one tentacle of Brookhaven that is majority black would have any
1220 more in common with Copiah County municipalities than other precincts.
1221 Illustrative SD 35 does not satisfy the first Gingles precondition.
1222 f. Illustrative House District 22

1223
1224 Illustrative HD 22 is an additional majority-minority district with a
1225 BVAP of 55.41 percent that Cooper asserts can be drawn in Chickasaw and

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1226 Monroe Counties by splitting small areas from the Cities of Aberdeen and
1227 Houston. PTX-001, 716, 897. HD 22 had an initial BVAP of 29.86 percent
1228 in the Enacted House Plan. PTX-001, 716; JTX-051, 4. Cooper testified
1229 Illustrative HD 22 is more compact than the Enacted House Plan by
1230 containing only two counties and following Highway 45 rather than splitting
1231 predominantly black communities across three districts like in the Enacted
1232 House Plan. Trial Tr. 142:5–143:8; PTX-001, 61–64. He explained
1233 Illustrative HD 22 encompasses whole precincts and follows natural
1234 boundaries such as waterways and county borders. Trial Tr. 144:2–6. The
1235 Enacted House Plan instead “crack[s the b]lack population in the midsection
1236 of Chickasaw and Monroe Counties” three ways and connects them via a
1237 narrow land bridge. Trial Tr. 142:21–143:8.
1238 Mamie Cunningham again testified about the communities of interest
1239 for Illustrative HD 22, and like for Illustrative SD 17, residents in the
1240 Illustrative HD 22 area share socioeconomic, civic, economic, educational,
1241 and other similar interests across county lines, and the municipalities are
1242 connected by the frequently traveled natural boundaries Highway 45 and
1243 Alternate Highway 45. Trial Tr. 245:2–246:13, 247:14–248:2. We credit her
1244 testimony.
1245 The Defendants do not so much challenge the illustrative district as
1246 they explain why a different district was drawn. They rely on the state house
1247 committee chairman’s summary statement explaining the plan and how there
1248 was population loss in the state. JTX-010, 6. The Defendants interpret the
1249 statement as indicating that there was a population loss in this specific
1250 district, but that is not what the chairman said. Regardless, all such a
1251 statement means is that a district that lost population must add population to
1252 comply with the required population-deviation standards, nothing more.
1253 The Defendants also assert that Enacted HD 22 was designed to
1254 protect an incumbent. That fact does not affect the legitimacy of the

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1255 illustrative district. Further, the Defendants argue Illustrative HD 22 is

1256 drawn along racial lines such that majority-black population precincts are
1257 included and majority-white precincts are excluded solely to achieve a racial
1258 objective. DX-003, 50. We explained before that so long as race is not the
1259 predominant factor, the Supreme Court has approved the consideration of
1260 race to show that a reasonably compact majority-minority district could be
1261 drawn. Milligan, 599 U.S. at 30–31. We distinguish our earlier discussion of
1262 Illustrative SD 17, where we found that Cooper allowed race to predominate
1263 when he split the black populations from three different cities, and the
1264 Plaintiffs offered little credible evidence that the resulting illustrative district
1265 joined communities of interest. There is no significant splitting of cities in
1266 Illustrative HD 22, and we find the evidence credible that the resulting
1267 district shares relevant interests.
1268 Illustrative HD 22 was not drawn with race as the predominant factor,
1269 and it satisfies traditional redistricting criteria. We find this district satisfies
1270 the first Gingles precondition.

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1271 g. Illustrative House District 56

1272
1273 Illustrative HD 56 is an additional majority-minority district with a
1274 BVAP of 58.99 percent that Cooper asserts can be drawn in Hinds and
1275 Madison Counties by splitting the City of Clinton. PTX-001, 717; Trial Tr.
1276 143:724, 215 13–16. Enacted HD 56 had an original BVAP of 22.97 percent
1277 in the Enacted House Plan. PTX-001, 716; JTX-051, 6. Cooper testified
1278 Illustrative HD 56 is “an extremely compact district” anchored in Clinton
1279 that does not stretch into Madison County like the Enacted House Plan and
1280 is only 15 miles long. Trial Tr. 144:11–24, 217:2–4. Illustrative HD 56 instead
1281 tracks the Interstate 20 border and contains whole precincts, while removing
1282 allegedly unnecessary county splits. Trial Tr. 145:14–23.
1283 While this illustrative district is entirely contained in Hinds County
1284 and the Jackson municipal area, it does not appear Cooper gave the needed
1285 consideration as to whether there is an actual community of interest between
1286 Clinton and west Jackson. See PTX-001, 821. Cooper identified that because

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1287 “[t]hey’re right next door to one another,” “it’s an urban area [where] there
1288 could be all sorts of common side relating roads and highways,” and “they’re
1289 so close to one another,” Illustrative HD 56 could contain a potential
1290 community of interest. Trial Tr. 216:8–18. He could not identify any of the
1291 “other factors that [he] considered in determining whether or not there’s a
1292 community of interest.” See Trial Tr. 216:21–217:4. Cooper only discussed
1293 Clinton’s proximity to west Jackson and its “significant increase in the Black
1294 population.” Trial Tr. 217:14–15; see id. This does not explain why the parts
1295 of Clinton included in Illustrative HD 56 have more in common with west
1296 Jackson than the rest of the city other than race.
1297 Sharon Moman, a real-estate broker in and lifelong resident of Clinton
1298 and Jackson, testified about the strong connections between the two areas
1299 that make Illustrative HD 56 a community of interest. Trial Tr. 644:4–10,
1300 649:17–651:2. Though Moman identified various connections, she did not
1301 testify that the specific portion of west Jackson that was included in the
1302 illustrative district shared such interests with Clinton. Instead, most of her
1303 testimony centered on Jackson amenities that were not in the part of Jackson
1304 included in the illustrative district. While Moman credibly answered the
1305 questions she was asked, her testimony does not establish a community of
1306 interest across Illustrative HD 56.
1307 In addition, the Defendants argue that political performance justified
1308 Enacted HD 56 and undermined the illustrative district. We would describe
1309 the argument as being that the illustrative district did not follow traditional
1310 redistricting criteria because it did not take political performance into
1311 account. Here, the criterion is better understood as being incumbent
1312 protection. Though counsel’s argument to the court mentioned the
1313 connection, no evidence was introduced that Speaker of the House Philip
1314 Gunn represented the enacted district. Trial Tr. 214:17–24. Nonetheless,
1315 we can take judicial notice that Speaker Gunn represented that district, but

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1316 we must also take notice that he did not run for re-election. Nothing in the
1317 record, or that we can take judicial notice of, indicates whether it was already
1318 known by the Mississippi Legislature that he would not run again when the
1319 redistricting maps were adopted. In light of that uncertainty, we give only
1320 slight weight to the argument that the illustrative district did not follow the
1321 traditional redistricting criteria of political performance.
1322 Considering all the evidence, we find that the Plaintiffs did not prove
1323 that Illustrative HD 56 was reasonably configured using traditional
1324 redistricting factors, particularly as to a community of interest. Thus, we find
1325 Illustrative HD 56 does not satisfy the first Gingles precondition.
1326 h. Illustrative House District 84

1327
1328 Illustrative HD 84 is an additional majority-minority district with a
1329 BVAP of 53.05 percent that Cooper asserts can be drawn in Newton, Jasper,
1330 and Clark Counties by splitting the City of Quitman. PTX-001, 717. The
1331 Enacted House Plan left Quitman whole and had a BVAP of 37.28 percent.

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1332 Id.; JTX-051, 6. Cooper’s Illustrative HD 84 is underpopulated by 2.76

1333 percent while Illustrative HD 81, located east of Illustrative HD 84, is
1334 overpopulated by 4.67 percent. See DX-003, 50. Cooper nonetheless
1335 testified that Illustrative HD 84 reduces the number of county splits from
1336 eight to two, keeps the City of Newton mostly whole, and avoids splitting
1337 Newton’s only majority-black precinct, all while the Enacted House Plan
1338 splits multiple counties and multiple precincts. PTX-001, 857–62, 870, 881–
1339 91; see Trial Tr. 697:1–16.
1340 Deacon Kenneth Harris and Terry Rogers both testified as to the
1341 community of interest found within Illustrative HD 84. Deacon Harris is a
1342 lifelong Newton County resident who previously served as a Newton County
1343 Supervisor and was a member of the East Central Planning and Development
1344 Board that worked on the redistricting of the district. Trial Tr. 685:17–
1345 687:16. Rogers is a nineteen-year-old lifelong City of Quitman resident and
1346 current college student who ran for Mississippi Commissioner of Agriculture
1347 and Commerce. Trial Tr. 933:11–19, 936:17–937:18. Both Harris and Rogers
1348 credibly testified as to the common, rural, low-income nature of the
1349 communities combined in the illustrative district and how these communities
1350 share traditions, festivals, retail and church venues, and sports rivalries. Trial
1351 Tr. 691:3–693:21, 938:23–940:16. They also explained the employment and
1352 healthcare opportunities shared among Newton, Jasper, and Clark County
1353 residents. Id. According to Harris and Rogers, Illustrative HD 84 does a
1354 better job maintaining communities than the Enacted House Plan and
1355 “binds” the area “together instead of splitting it like it is now.” Id.; Trial
1356 Tr. 693:20–21.
1357 However, this testimony does not provide enough to overcome the
1358 significance of splitting three counties and the City of Quitman.
1359 Neighboring-county residents attending major festivals in the area;
1360 preferring to attend church, shop, and work in Newton County; and being

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1361 served by Newton County’s one hospital speaks to their geographic

1362 proximity but is not enough to support that this illustrative district comprises
1363 a distinct community of interest. See Trial Tr. 690:16–693:20; 938:20–
1364 942:24. That the one hospital does not appear to be within Illustrative HD
1365 84 and an identified community of interest — Quitman — is split undermines
1366 the assertion that this illustrative district contains a community of interest.
1367 See Trial Tr. 693:9–10; PTX-001, 694. Illustrative HD 84 is thus not
1368 reasonably drawn and does not satisfy Gingles one.
1369 * * *
1370 Under the first Gingles precondition, the Plaintiffs were required to
1371 prove the geographical compactness and numerosity of Mississippi’s
1372 minority population. Robinson, 86 F.4th at 589. The evidence presented
1373 must prove Mississippi’s minority population in a potential election district
1374 is greater than 50 percent and is compact enough to create another black-
1375 majority district that the State did not draw, and the potential district must
1376 respect traditional districting criteria. See Strickland, 556 U.S. at 19–20;
1377 Milligan, 599 U.S. at 20.
1378 We find that three of the illustrative senate and house districts reflect
1379 minority groups that are sufficiently large and geographically compact
1380 enough to constitute a majority in a reasonably configured district. Milligan,
1381 599 U.S. at 18. These districts are Illustrative SD 2, SD 9, and HD 22.
1382 The remaining four illustrative districts — Illustrative SD 17, SD 35,
1383 HD 56, and HD 84 — do not satisfy this Gingles precondition.
1384 2. Gingles Preconditions Two and Three
1385 The Supreme Court requires that the evidence allow a court to make
1386 findings as to all three preconditions as they specifically relate to an
1387 illustrative district. “Those three showings, [the Court] explained, are
1388 needed to establish that ‘the minority [group] has the potential to elect a

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1389 representative of its own choice’ in a possible district, but that racially
1390 polarized voting prevents it from doing so in the district as actually drawn
1391 because it is ‘submerg[ed] in a larger white voting population.’” Harris, 581
1392 U.S. at 302 (second and third alteration in original) (quoting Emison, 507 U.S.
1393 at 40). Thus, once an acceptable illustrative district for purposes of
1394 precondition one has been identified, the Plaintiffs must establish that the
1395 second and third preconditions are satisfied as to the enacted districts in the
1396 geographical area of the illustrative district. In addition, evidence covering
1397 other geographical areas, if it can be shown those areas share relevant
1398 characteristics, could be shown to be relevant.
1399 The second Gingles precondition concerns the voting behavior of
1400 black voters. See Gingles, 478 U.S. at 51, 56. It asks whether a significant
1401 number of black voters “usually vote for the same candidates,” id. at 56, such
1402 that they would elect their representative of choice in a majority-minority
1403 district, see Milligan, 599 U.S. at 18–19.
1404 The third Gingles precondition focuses on the electoral outcomes
1405 resulting from racially polarized behavior. See Gingles, 478 U.S. at 51, 56.
1406 Concentrating on racially polarized voting, “the plausibility that the
1407 challenged legislative districting thwarts minority voting on account of race”
1408 must be established. Robinson, 86 F.4th at 595. In other words, a plaintiff
1409 must provide proof that “whites vote sufficiently as a bloc usually to defeat
1410 the minority’s preferred candidates.” Gingles, 478 U.S. at 56. “Thus, the
1411 question whether a given district experiences legally significant racially
1412 polarized voting requires discrete inquiries into minority and white voting
1413 practices.” Id.
1414 The second and third Gingles preconditions are often analyzed
1415 together. Emison, 507 U.S. at 40; see Milligan, 599 U.S. at 22. Courts
1416 determine first if the black voters are politically cohesive. Milligan, 599 U.S.

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1417 at 18–19. Then, “[t]he question is not whether white bloc voting is present,
1418 but whether such bloc voting in a given district amounts to legally significant
1419 racially polarized voting.” Robinson, 86 F.4th at 595; see also LULAC v.
1420 Clements, 999 F.2d at 850. The Supreme Court recognizes a difference
1421 between legally significant and statistically significant racially polarized
1422 voting. See Gingles, 478 U.S. at 53, 55. Statistics may be used to determine
1423 the voting percentages and support for candidates in a given election, but
1424 what amounts to statistical importance may not rise to legal significance given
1425 the relevant facts. See id. at 79 (clarifying the determination of “whether the
1426 political process is equally open to minority voters” is “peculiarly dependent
1427 upon the facts of each case” (quoting Rogers v. Lodge, 458 U.S. 613, 621)); see
1428 also LULAC v. Clements, 999 F.2d at 850–51.
1429 Thus, “[t]he proper question to ask is this: If the [S]tate’s districting
1430 plan takes effect, will the voting behavior of the white majority cause the
1431 relevant minority group’s preferred candidate usually to be defeated?”
1432 Robinson, 86 F.4th at 597 (quotation marks and citation omitted). In other
1433 words, do cohesion among the minority group and bloc voting among the
1434 majority population both exist. We now examine the evidence regarding the
1435 second and third preconditions as they relate to the enacted districts in the
1436 areas where we found the three illustrative districts satisfied precondition
1437 one.
1438 The Plaintiffs presented the expert testimony of Dr. Lisa Handley as
1439 their evidence of the second and third Gingles preconditions. Dr. Handley
1440 received her PhD in political science. She then started her own company
1441 where she provides redistricting expertise to various districts throughout the
1442 United States. Trial Tr. 260:20–25. She has aided state and local
1443 jurisdictions, the Department of Justice, and independent-redistricting and
1444 civil-rights organizations by providing racial bloc-voting analysis and
1445 expertise. Trial Tr. 255:18–21, 261:1–7. With over 35 years of quantitative-

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1446 voting-analysis experience, she has testified as an expert in numerous

1447 redistricting cases, including in Louisiana, Georgia, and Texas, where she
1448 conducted analyses of voting patterns by race and redistricting plans to
1449 determine whether the black population is politically cohesive and the voting
1450 is polarized. PTX-004, 2–3, 70; Trial Tr. 255:18–21, 257:23–260:16. At trial,
1451 we accepted Dr. Handley as an expert in racially polarized voting and the
1452 statistical analysis of minority vote dilution and redistricting. Trial Tr.
1453 262:15–22.
1454 To challenge Dr. Handley’s analyses, the Defendants presented
1455 expert testimony from Rice University professor Dr. John Alford. DX-001,
1456 2. Dr. Alford has been teaching political science at Rice for over 35 years and
1457 is well-versed in redistricting, elections, voting behavior, and statistical
1458 methods. Id. Dr. Alford has served as an expert witness in numerous
1459 redistricting cases, including in Louisiana, Georgia, and Texas, where he
1460 presented statistical methodology and analyses related to racially polarized
1461 voting pursuant to the Gingles second and third preconditions. Trial Tr.
1462 1410:22–1411:23; DX-001, 30–31. At trial, we accepted Dr. Alford as an
1463 expert on assessing the second and third Gingles preconditions and Senate
1464 Factor 2. Trial Tr. 1413:12–19.
1465 Dr. Handley analyzed racial voting patterns in the county clusters
1466 where the seven illustrative districts were drawn to evaluate the extent of
1467 racially polarized voting. She focused on areas where the Illustrative and
1468 Enacted Plans overlapped. PTX-004, 6–8; Trial Tr. 262:24–263:7. She
1469 classified the senate districts as Area One — North West and North Central;
1470 Area Two — Greater Golden Triangle; Area Three — South Central; and
1471 Area Four — South East. The house districts were classified as Area Five
1472 — Western Jackson; Area Six — Golden Triangle; and Area Seven — East
1473 Central. PTX-004, 7–8 (Table One). The two illustrative senate districts we
1474 concluded satisfy the first Gingles precondition, Illustrative SD 2 and SD 9,

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1475 are in Areas One and Four, and the valid illustrative house district,
1476 Illustrative HD 22, is in Area Two, with some overlap in Area Six. See id.
1477 Dr. Handley utilized homogeneous precinct analysis, ecological
1478 regression, and ecological inference, three well-accepted statistical methods
1479 employed in Gingles analyses. PTX-004, 3–5; Trial Tr. 270:6–12. These
1480 three methods calculate the percentage of black voters and white voters who
1481 voted for specific candidates in certain elections. Trial Tr. 273:25–274:7. Dr.
1482 Handley and Dr. Alford agreed that, of the three methods used, the ecological
1483 inference (“EI RxC”) method is the most accurate and reliable for
1484 determining credible intervals of racial bloc voting. Trial Tr. 270:13–273:11,
1485 1425:2–9, 1426:8–12. We accept this characterization. Further, EI RxC was
1486 the principal method Dr. Handley employed when analyzing the recent
1487 statewide general elections, state legislative general elections, statewide
1488 Democratic primaries, and nonpartisan judicial contests in the seven areas of
1489 interest. PTX-004, 8–11; Trial Tr. 270:13–273:11.
1490 Dr. Handley primarily focused on contests that included both black
1491 and white candidates because courts have found these biracial elections to be
1492 more probative than contests with only white candidates for a Gingles
1493 polarized-voting analysis. Trial Tr. 274:22–275:6. For a comparison, she
1494 also analyzed several elections that did not include black candidates. See
1495 PTX-004, 9. Dr. Handley found that all seven areas she examined
1496 demonstrated consistently high levels of racially polarized voting, with black
1497 voters cohesively supporting their preferred candidates and white voters
1498 cohesively bloc-voting against black-preferred candidates. Though we must
1499 be alert to how the evidence and Dr. Handley’s findings relate to the areas

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1500 encompassing the three illustrative districts that satisfy the first Gingles
1501 precondition, we need not disentangle all of Dr. Handley’s analyses. 5
1502 a. State Legislative Elections
1503 Dr. Handley analyzed 19 biracial state legislative elections in each of
1504 the seven illustrative district areas under the 2012 enacted district
1505 boundaries. PTX-004, 9–10, 12. Dr. Handley classified these state legislative
1506 contests as endogenous elections, meaning the elections are for the same
1507 offices as the ones involved in the litigation. Trial Tr. 1447:2–16. She
1508 testified that endogenous elections are the most probative when analyzing the
1509 second and third preconditions. The Fifth Circuit once stated that when
1510 considering whether there is racial bloc voting under Gingles, “elections
1511 involving the particular office at issue will be more relevant than elections
1512 involving other offices.” Magnolia Bar Ass’n, Inc. v. Lee, 994 F.2d 1143, 1149
1513 (5th Cir. 1993). We agree that legislative elections are the most probative
1514 here, but we also acknowledge that evidence as to other elections is
1515 potentially relevant.
1516 The Defendants’ expert Dr. Alford testified that the legislative
1517 elections Dr. Handley considered are better classified as semi-endogenous.
1518 Trial Tr. 1447:17–1448:13. His clarification was because the 19 elections
1519 concern the right office but not the right districts since Dr. Handley used the
1520 2012 district lines rather than the 2022 enacted district lines. Trial Tr.
1521 1448:11–13; PTX-004, 9. We do not resolve the definitional dispute but

_____________________
5
We examine significant parts of Dr. Handley’s evidence in what follows, but our
findings as to the second and third preconditions rely on evidence relevant to the enacted
districts that are in the geographical areas where the illustrative districts that we already
found satisfied precondition one are located. As the Fifth Circuit stated, “plaintiffs must
show that such bloc voting would be present in the challenged districting plan. And that
conclusion must be true for voters in a particular location.” Robinson v. Ardoin, 37 F.4th
208, 224 (5th Cir. 2022) (emphasis in original) (citations omitted).

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1522 simply accept that the 19 legislative elections selected by Dr. Handley are the
1523 most analogous ones.
1524 The 2022 district lines and the 2023 state legislative election returns
1525 for all county precincts became available as of November 2023, just a few
1526 months before trial, but neither Dr. Handley nor any other expert analyzed
1527 those returns. Trial Tr. 1202:21–1203:4; Doc [219], 44. Instead, under the
1528 previously enacted plans, Dr. Handley considered any election within a
1529 district if the district was either wholly contained in any of her seven areas or
1530 overlapped with either the illustrative or enacted districts. Trial Tr. 1202:21–
1531 1203:4; Doc [219], 44. She then performed an effectiveness analysis. PTX-
1532 004, 58–60; Trial Tr. 322:19–22. Whatever arguments could be made that
1533 later and better data existed, we find that at most they affect, slightly, the
1534 weight to be given to Dr. Handley’s findings.
1535 Dr. Handley used these results to find that black citizens voted
1536 cohesively for their candidates while white voters cohesively opposed the
1537 black-preferred candidates in all state legislative elections. PTX-004, 12.
1538 None of the following findings were limited to just the three geographical
1539 areas of the relevant illustrative districts, but there also is no suggestion of
1540 significant regional polarization variations in Mississippi. Here, too, we find
1541 that the absence of evidence focused just on the three areas is a matter of the
1542 weight of the evidence.
1543 Dr. Handley found that on average, 83.3 percent of black voters
1544 supported black-preferred candidates compared to 18.3 percent of white
1545 voters. Id. Additionally, black candidates were successful in the state
1546 legislative elections only in majority-minority districts. Trial Tr. 294:17–21.
1547 The black-preferred candidate is sometimes a white Democrat, ones like
1548 Senator Hob Bryan, Senator David Blount, and Representative Shandra
1549 Yates (first elected as a Democrat, then re-elected as an Independent).

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1550 Stipulations [199] App. A at 17–19. The Defendants showed that in Enacted
1551 SD 2, which contains only a 33 percent BVAP, black Democrat (and Plaintiff)
1552 Pamela Hamner obtained 43 percent of the vote. PTX-004, 16. Enacted SD
1553 7 has a 40.08 percent BVAP and 43.9 percent effectiveness score from Dr.
1554 Handley, but white Democrat Hob Bryan obtained 54.89 percent of the vote.
1555 Trial Tr. 347:23–348:25.
1556 Dr. Handley’s effectiveness analysis is not altered by these references.
1557 Under Senate Factor 2, “proof that some minority candidates have been
1558 elected does not foreclose a § 2 claim.” Gingles, 478 U.S. at 75. “‘[T]he
1559 election of a few minority candidates does not necessarily foreclose the
1560 possibility of dilution of the black vote.’” Clark v. Calhoun County, 88 F.3d
1561 1393, 1397 (5th Cir. 1996) (citation omitted). At most these examples show
1562 an occasional breakdown of racial polarization for reasons not explained in
1563 the record. Quality of candidates and of opposition cannot always be
1564 irrelevant. One of the Plaintiffs’ experts, Dr. Marvin King of the University
1565 of Mississippi, testified as to those considerations:
1566 Q. Dr. King, you also refer to candidate viability. What do
1567 you mean by that?
1568 A. Sure. So — so Black voters are strategic, right? So, you
1569 know, there are instances when Blacks may not support the
1570 Black Democrat candidate if they are not viable. And what we
1571 mean by that is they haven’t raised money, they might be a
1572 perennial candidate that puts their name on the ballot election
1573 after election.
1574 Trial Tr. 774:22–775:4.
1575 Further, racial polarization in voting is not disproved by evidence that
1576 black voters supported a white candidate. We are concerned with racial
1577 polarization of voters, i.e., are white voters consistently preventing the

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1578 election of the candidates that black voters would choose? It is the race of
1579 the voters, not of the candidates, that matter.
1580 Dr. Handley testified to the presence of racially polarized voting in all
1581 19 elections, but to the extent possible we focus on her testimony related to
1582 the areas of Illustrative SD 2, SD 9, and HD 22. Of course, none of the
1583 elections occurred in the precise districts at issue. Trial Tr. 284:8–18. We
1584 find that, nonetheless, the relevant areas comprise Enacted SD 2, 10, 19, 34,
1585 42, and 45 and Enacted HD 36 and 39. See PTX-004, 58–60 (App. B).
1586 Of these districts, Dr. Handley specifically testified as to Enacted HD
1587 36 and 39 and Enacted SD 42 and 45. Trial Tr. 289–93. Enacted HD 36 was
1588 a black-majority district in which the black-preferred candidate won 77.7
1589 percent of the votes and the white-preferred candidate received essentially
1590 no black support. Trial Tr. 290; PTX-004, 59 (App. B). Enacted HD 39 was
1591 not a black-majority district, and the white candidate received 75 percent of
1592 the vote to the black-preferred candidate’s 25 percent. Trial Tr. 293:2–9;
1593 PTX-004, 60 (App. B). Dr. Handley concluded that, in Enacted SD 42, had
1594 there been more black voters in the district, the black-preferred candidate
1595 would have carried the election. Trial Tr. 291:22–292:2. Instead, the
1596 majority-white district gave 85.8 percent of the votes to the white-preferred
1597 candidate. PTX-004, 59 (App. B). In Enacted SD 45, the white-preferred
1598 candidate received 86.8 percent of the vote, while the black-preferred
1599 candidate received 13.2 percent. PTX-004, 59 (App. B). The white
1600 candidate received over 95 percent of the white vote, while the majority of
1601 black voters supported the black-preferred candidate. Trial Tr. 292:3–19.
1602 From this, Dr. Handley concluded there was clear racial polarization in each
1603 applicable district. Trial Tr. 289–93.
1604 Although Dr. Handley testified all 19 elections were racially polarized,
1605 the Defendants argue the black-preferred candidate won in eight of the 19

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1606 elections and seven elections were only able to be “best guess estimate[s]”
1607 of the racially polarized voting, indicating reliability issues in Dr. Handley’s
1608 analysis. Doc [219], 45. In most of the state legislative contests (14 out of
1609 19), Dr. Handley found that cohesion among black voters was at least 75
1610 percent. Pls. FOF ¶¶ 162–163. The average level of black support for
1611 preferred candidates across the seven areas was 94.3 percent in biracial
1612 contests. Trial Tr. 283:6–10. The Defendants’ expert did not dispute that
1613 black voters are cohesively supporting preferred candidates in those areas.
1614 In Dr. Alford’s opinion, Dr. Handley’s definition of cohesion is
1615 flawed. Dr. Handley defines cohesive voting as when “a substantial number
1616 of minority voters consistently vote for the same candidates,” but she does
1617 not identify a specific numerical threshold to determine cohesion. Trial Tr.
1618 267:8–19. Dr. Handley testified that courts do not set a bright-line rule on
1619 cohesive voting and instead provide a range. Trial Tr. 267:14–19. Dr. Alford
1620 generally agreed with that but then criticized Dr. Handley’s analysis that
1621 found “every preferred candidate gets cohesive support [b]ecause they
1622 couldn’t be the preferred candidate” without cohesive support. Trial Tr.
1623 1455:1–10. Dr. Alford explained the candidates would not be considered
1624 preferred “unless they [had gotten] more votes than the other candidate” in
1625 the election. Id. In his opinion, no finding can be made that the second and
1626 third Gingles preconditions are met to any degree of scientific certainty
1627 because Dr. Handley’s cohesion standard lacks any indication of the needed
1628 level of black support to meet that standard. Id.; DX-001, 11.
1629 We credit Dr. Handley’s testimony that, even absent a precise
1630 definition for cohesiveness, black and white voters are voting for separate
1631 candidates at a sufficiently high percentage to satisfy the Gingles
1632 requirements for racial polarization. In majority-black districts, the evidence
1633 shows that white voters do not prevent the election of candidates that black
1634 voters prefer, but that fact supports and does not undermine that

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1635 preconditions two and three are satisfied. We thus reject Dr. Alford’s
1636 criticisms of Dr. Handley’s methodology or her findings.
1637 b. Statewide General Elections
1638 Dr. Handley testified that legislative elections were the most
1639 probative, but she also found useful data from other elections. She analyzed
1640 17 statewide general elections in each of the seven illustrative district areas.
1641 PTX-004, 8–9. Eleven elections had a black Democrat running against a
1642 white Republican, and the remaining five had no black candidates. 6 Id. Dr.
1643 Handley concluded that voting was consistently and starkly racially polarized
1644 in all 17 elections. PTX-004, 11–12. An average of 94.3 percent of black
1645 voters cohesively supported their preferred candidate, while an average of 6.9
1646 percent of white voters voted for the black-preferred candidate in the 11
1647 biracial elections. Id. at 11. In the five elections with no black candidates, the
1648 average white support for black-preferred candidates increased to 9.1 percent
1649 for white candidates. Id. at 11–12. Specifically in these statewide general
1650 elections, Dr. Handley calculated what she qualified as “quite stark” voting
1651 behavior. Trial Tr. 266:7. We provide Dr. Handley’s calculations, then
1652 address Dr. Alford’s responses.
1653 First, the areas encompassing the three illustrative districts that
1654 satisfy Gingles precondition one. For Illustrative SD 2 and 9, those are Areas
1655 One and Four. In Area One, black-voter support for black-preferred
1656 candidates ranged from 96.6 percent to 73.9 percent, with an average of 92.29
1657 percent. PTX-004, 37–39; Trial Tr. 281:22–282:11. White-voter support for
_____________________
6
Dr. Handley analyzed the 2020 presidential race in which a white man, Joseph
Biden, headed the Democratic ticket and a black woman, Kamala Harris, was his running
mate. PTX-004, 8. Neither Dr. Handley nor the Plaintiffs presented further statistics or
analysis on the 2020 Presidential election other than to state it “was also starkly polarized
in all seven areas of interest.” PTX-004, 11 n.16. Thus, we discuss only the 16 statewide
elections where meaningful data was presented to the court.

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1658 the black-preferred candidate ranged from 20.5 percent to 6.3 percent, with
1659 an average of 9.67 percent. PTX-004, 37–39; Trial Tr. 282:12–20. In Area
1660 Four, black-voter support for the black-preferred candidate ranged from 96.2
1661 percent to 83.2 percent, with an average of 93.73 percent. PTX-004, 46–48;
1662 see generally Trial Tr. 281:22–283:5. White-voter support for the black-
1663 preferred candidate ranged from 13.1 percent to 2.8 percent, with an average
1664 of 5.02. Id.
1665 For Illustrative HD 22, we consider Dr. Handley’s Areas Two and
1666 Six. In Area Two, black-voter support for the black-preferred candidate
1667 ranged from 97.4 percent to 85.3 percent, with an average of 95.23 percent.
1668 PTX-004, 40–42; see generally Trial Tr. 281:22–283:5. White-voter support
1669 for the black-preferred candidate ranged from 14.7 percent to 2.9 percent,
1670 with an average of 5.84 percent. Id. In Area Six, black-voter support for the
1671 black-preferred candidate ranged from 96.9 percent to 85.2 percent, with an
1672 average of 94.98 percent. PTX-004 at 52–54; see generally Trial Tr. 281:22–
1673 283:5. White-voter support for the black-preferred candidate ranged from
1674 14.8 percent to 3.1 percent, with an average of 5.35 percent. Id.
1675 Now, the statistics for the remaining three areas. In Area Three, black
1676 voter support for the black-preferred candidate ranged from 98.4 percent to
1677 89.3 percent, with an average of 96.61 percent. PTX-004, 43–45; see generally
1678 Trial Tr. 281:22–283:5. White-voter support for the black-preferred
1679 candidate ranged from 17.5 percent to 4.2 percent, with an average of 7.49
1680 percent. Id. In Area Five, black-voter support for the black-preferred
1681 candidate ranged from 98.3 percent to 89.0 percent, with an average of 96.31
1682 percent. PTX-004, 49–51; see generally Trial Tr. 281:22–283:5. White-voter
1683 support for the black-preferred candidate ranged from 32 percent to 5.3
1684 percent, with an average of 15.68 percent. Id. In Area Seven, black-voter
1685 support for the black-preferred candidate ranged from 96.6 percent to 82.9
1686 percent, with an average 94.26 percent. PTX-004, 55–57; see generally Trial

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1687 Tr. 281:22–283:5. White-voter support for the black-preferred candidate

1688 ranged from 11.2 percent to 2.2 percent, with an average of 3.86 percent. Id.
1689 Dr. Handley explained only the elections results in Area One at trial.
1690 See Trial Tr. 276–283. She discussed her determinations with respect to two
1691 of the elections in this area of interest, finding clear black-voter cohesion and
1692 racial polarization. See Trial Tr. 278–281. Using her specific results from
1693 Area One and the above voter-support ranges for the remaining six areas, Dr.
1694 Handley opined that the 17 statewide general elections portrayed black voters
1695 as being “very cohesive” and that “[y]ou couldn’t get much more cohesive
1696 than this.” Trial Tr. 279:21–22; see generally Trial Tr. 276–283. She further
1697 articulated that “[v]oting is quite polarized in th[e] seven areas” of interest.
1698 Trial Tr. 283:18.
1699 Dr. Alford used Dr. Handley’s data to formulate his own opinions
1700 about the 17 statewide elections. He insisted that the data does not
1701 demonstrate racially polarized voting but, instead, voting that is polarized
1702 around party. Trial Tr. 1443:1–:13. Dr. Alford explained that the data
1703 showed a gap in voter preference in these statewide general elections among
1704 black and white voters in a contest between two white candidates with a mean
1705 difference of 86.5 percent based solely on party. DX-001, 10. In an election
1706 between a white Republican and a black Democrat, however, the mean
1707 difference in voting support among black and white voters was 87.6 percent.
1708 Id. Removing the racial cue, the mean difference between the white
1709 Republican and black Democrat is 86.3 percent. Id. Democratic candidates
1710 had a 90 percent range of cohesive support by black voters, and Republican
1711 candidates had an 80–90 percent range of cohesive support by white voters.
1712 Id. at 7–8. In Dr. Alford’s opinion, whether a candidate is a Democrat or a
1713 Republican makes an almost 90 percent difference to black and white voters
1714 in these elections, but whether a candidate is black or white barely registers.
1715 Id. at 10.

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1716 Dr. Alford asserted this indeed shows partisan polarized voting
1717 because “when we vary the race of candidates, it simply doesn’t [] make a
1718 difference.” Trial Tr. 1442:10–11. Dr. Alford conceded, however, that it is
1719 “not empirically untrue of” Dr. Handley’s data that “Black voters
1720 overwhelmingly prefer Black candidates[, and] White voters overwhelmingly
1721 prefer White candidates.” Trial Tr. 1443:1–6. He clarified this “is not
1722 actually something the [data] could disconfirm” and opined the better
1723 conclusion is that partisanship is what is polarizing the voters because “the
1724 data [in its entirety] doesn’t support” race as the polarizing factor. Trial Tr.
1725 1443:5–12.
1726 We find Dr. Alford’s concession — that race versus party as the
1727 motivating factor is quite difficult to distinguish from the data — may be true
1728 but does not prevent us from making findings here. We see in the 16
1729 statewide contests almost always a range of no less than 95 percent support
1730 by black voters for the Democratic candidate, and, in those same elections,
1731 less than 10 percent support from white voters. There are aberrant elections,
1732 as both experts testified. The most significant is when the last of the
1733 Democratic statewide officials, Attorney General Jim Hood, ran for
1734 Governor in 2019. He received almost 18 percent of the white vote and 96
1735 percent of the black vote. We contrast that with the evidence in Dr.
1736 Handley’s report that when black Hattiesburg mayor Johnny DuPree was the
1737 Democratic nominee for Governor in 2011, his white crossovers were only
1738 8.4 percent, less than half of what Attorney General Hood received. Race
1739 matters.
1740 We do not find that, if an occasional candidate supported
1741 overwhelmingly by black voters can break the color barrier just a bit among
1742 white voters, this proves anything other than that there will be outliers in
1743 statistical analysis.

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1744 Similarly, at times the black Democratic candidate did not have a
1745 significant campaign. One of these was the 2015 Governor’s race, where the
1746 black Democratic nominee Robert Gray received only 84 percent of the black
1747 vote. No evidence was introduced about him, but we accept that election as
1748 an example of a Democratic candidate who may not have appeared credible
1749 to many black voters. We find that this data demonstrates racial bloc voting
1750 exists in the areas of the three illustrative districts that satisfied the first
1751 precondition.
1752 c. Statewide Democratic Primaries and Judicial-District Elections
1753 Dr. Handley next analyzed eight statewide biracial Democratic
1754 primary elections. PTX-004, 10–11. She found reliable statistical estimates
1755 impossible to generate solely in the seven areas and thus reported statewide
1756 estimates. Trial Tr. 296:21–297:4. Dr. Handley focused solely on
1757 Democratic primaries because black voters generally prefer Democrats over
1758 Republicans, meaning there would be no black-preferred candidates in the
1759 Republican primaries. Moreover, so few black voters participate in
1760 Republican primaries such that reliable voting behavior estimates cannot be
1761 produced. Trial Tr. 296:9–18. Just these preliminary observations reveal
1762 that these elections are not useful. Accordingly, we do not discuss the
1763 evidence with the exception of the following.
1764 Dr. Handley examined three recent Mississippi non-partisan elections
1765 for the state supreme court in which there was at least one black and one
1766 white candidate. She found sharp racial polarization in the two contests in
1767 which the black candidate won in a district with a voting-age population fairly
1768 evenly divided between black citizens and white citizens. She found no racial
1769 polarization in the third election, won by the white candidate in a district with
1770 a substantial white-majority electorate. PTX-004, 13. The two polarized
1771 elections had over 90 percent black-voter support for black candidates and

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1772 white-voter support for white candidates. Id. Dr. Handley conducted this
1773 analysis solely “to rebut the contention that it could be party not race”
1774 causing these results, and she concluded polarization was present
1775 “regardless of the fact that party was not on the ballot.” Trial Tr. 300:7–8,
1776 21–22.
1777 Dr. Alford’s rebuttal was to acknowledge that while Mississippi
1778 judicial elections are nominally nonpartisan, it is a widely acknowledged fact
1779 that the candidates and their campaigns are anything but nonpartisan. DX-
1780 001, 15. Partisan advertisements, appeals, candidate endorsements, and
1781 donations are common in Mississippi, even resulting in court battles over
1782 party alignment for candidates. See generally James v. Westbrooks, 275 So. 3d
1783 62 (Miss. 2019). We agree with the Plaintiffs that not all voters would be
1784 aware of the partisan alliances behind individual supreme court candidates.
1785 Nonetheless, a high-enough percentage of voters know which party supports
1786 which judicial candidate for us to reject Dr. Handley’s factual claims as to
1787 these elections.
1788 * * *
1789 We find racial polarization among voters in Mississippi is quite high.
1790 Trial Tr. 267:4–6. Black-preferred candidates are consistently unable to win
1791 elections unless running in a majority-minority district. Trial Tr. 268:1–9.
1792 White voters are also cohesive in voting for candidates that usually defeat the
1793 black-preferred candidates. Though there is no standard set by courts on the
1794 level of cohesion needed to support the analysis under Gingles, we find that
1795 Dr. Handley is correct that the level of cohesion here is sufficient, particularly
1796 for the areas encompassing the three valid illustrative districts.
1797 Having met their burden under the second and third Gingles
1798 preconditions, the Plaintiffs have no duty “to disprove that factors other than
1799 race affected voting patterns” in the areas of interest. Teague v. Attala

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1800 County, 92 F.3d 283, 290 (5th Cir. 1996). The Defendants, however, could
1801 “rebut the plaintiffs’ evidence by showing that no such [racial] bias exists in
1802 the relevant voting community.” Id.
1803 We have already mentioned that the Defendants attempt to rebut by
1804 saying this is all partisanship, not race. Whether that argument should be
1805 addressed here or under the totality-of-the-circumstances analysis is unclear.
1806 The Defendants at least acknowledged that it could fall under Senate Factor
1807 2, see Doc [218], 15, but precedent sometimes blurs that line. 7
1808 Just where the discussion best fits will not matter in this case, as
1809 ultimately the evidence does not support that racial polarization has become
1810 partisan divisions. For detailed reasons we set out in our analysis of Senate
1811 Factor 2, we find that, although there certainly was evidence and argument
1812 presented on that possibility, the Defendants have not rebutted the Plaintiffs’
1813 showing under Gingles preconditions two and three.
1814 The Plaintiffs have thus satisfied the three Gingles preconditions for
1815 Illustrative SD 2, SD 9, and HD 22.
1816 3. Totality of the Circumstances
1817 Having found that the Plaintiffs satisfied all three preconditions for a
1818 vote-dilution claim, we must now engage in a “searching practical evaluation
1819 of the past and present reality” of the political process in Mississippi.
1820 Gingles, 478 U.S. at 79 (quotation marks and citation omitted). That

_____________________
7
For example, the en banc court in LULAC v. Clements held that the evidence failed
to show race, not partisanship, best explained voting in Dallas County. 999 F.2d at 877. As
such, there was no “threshold showing required by Gingles.” Id. That implicates the
preconditions. That same opinion, however, also noted when discussing partisanship that
the question is “whether the political processes are equally open,” which rests “upon a
searching practical evaluation of the past and present reality.” Id. at 860 (quotation marks
and citations omitted). That is a totality inquiry. See Milligan, 599 U.S. at 19.

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1821 evaluation considers the totality of the circumstances, described as “an

1822 intensely local appraisal of the design and impact of the contested electoral
1823 mechanisms.” Id. (quotation marks and citation omitted).
1824 In 1986, the Supreme Court adopted “typical factors” to be
1825 considered in this portion of the Section 2 vote-dilution analysis. Id. at 36 &
1826 n.4. The United States Senate referred to these same factors in its report on
1827 the 1982 amendments to the Voting Rights Act. See S. REP. NO. 97-417, at
1828 23, 28–29. Most courts refer to them as the Senate Factors, and so will we.
1829 The following is the usual enumeration:
1830 1. the extent of any history of official discrimination in the
1831 state or political subdivision that touched the right of the
1832 members of the minority group to register, to vote, or
1833 otherwise to participate in the democratic process;
1834 2. the extent to which voting in the elections of the state or
1835 political subdivision is racially polarized;
1836 3. the extent to which the state or political subdivision has
1837 used unusually large election districts, majority vote
1838 requirements, anti-single shot provisions, or other voting
1839 practices or procedures that may enhance the opportunity
1840 for discrimination against the minority group;
1841 4. if there is a candidate slating process, whether the members
1842 of the minority group have been denied access to that
1843 process;
1844 5. the extent to which members of the minority group in the
1845 state or political subdivision bear the effects of
1846 discrimination in such areas as education, employment, and
1847 health, which hinder their ability to participate effectively
1848 in the political process;
1849 6. whether political campaigns have been characterized by
1850 overt or subtle racial appeals; [and]
1851 7. the extent to which members of the minority group have
1852 been elected to public office in the jurisdiction. . . .

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1853 8. whether there is a significant lack of responsiveness on the

1854 part of elected officials to the particularized needs of the
1855 members of the minority group; [and]
1856 9. whether the policy underlying the state or political
1857 subdivision’s use of such voting qualification, prerequisite
1858 to voting, or standard, practice or procedure is tenuous.
1859 Teague, 92 F.3d at 292–93 (alterations in original) (quoting Gingles, 478 U.S.
1860 at 36–37).
1861 Gingles invited consideration of other factors: “While the enumerated
1862 factors will often be pertinent to certain types of [Section] 2 violations,
1863 particularly to vote dilution claims, other factors may also be relevant and
1864 may be considered.” Gingles, 478 U.S. at 45 (footnote omitted). Rarely do
1865 courts consider others, though. We do not consider Factor 4, as no evidence
1866 was offered relevant to the slating of candidates.
1867 Importantly, the totality-of-the-circumstances inquiry recognizes that
1868 a court’s application of these factors “is peculiarly dependent upon the facts
1869 of each case.” Id. at 79. Defendants may attempt “to rebut plaintiffs’
1870 claim[s] of vote dilution via evidence of objective, nonracial factors” like
1871 partisan politics; as we stated before, it is not the Plaintiffs’ burden to negate
1872 “all nonracial reasons possibly explaining” voting patterns. Teague, 92 F.3d
1873 at 292, 295 (quotation marks and citation omitted).
1874 Indeed, “[i]t will be only the very unusual case in which” the Gingles
1875 preconditions are established and liability does not follow, and, in such a case,
1876 the court “must explain with particularity why it has concluded” there is no
1877 Section 2 violation. Id. at 293 (quoting Clark v. Calhoun County, 21 F.3d 92,
1878 97 (5th Cir. 1994)).
1879 We now review the factors.

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1880 a. Senate Factors 1 and 3

1881 The first factor in examining the totality of the circumstances is “the
1882 extent of any history of official discrimination in the state” that diluted or
1883 denied “the right of the members of the minority group to register, to vote,
1884 or otherwise to participate in the democratic process.” Gingles, 478 U.S. at
1885 36–37. The third is “the extent to which the state . . . has used . . . voting
1886 practices or procedures that may enhance the opportunity for discrimination
1887 against the minority group.” Id. at 37. We consider the two factors together
1888 because both look at the history of discrimination. The evidence as to each
1889 is at times the evidence as to both.
1890 How much history to consider is one question. To answer it, we
1891 distinguish between judicial precedents that examined history relevant to an
1892 Equal Protection analysis, which requires showing discriminatory or
1893 invidious intent, and those that examined history relevant to Section 2 of the
1894 Voting Rights Act.
1895 The Defendants argue that distant history of discrimination in
1896 Mississippi is all but irrelevant. Among their authorities is Shelby County, 570
1897 U.S. 529. There, the Supreme Court concluded the factual circumstances in
1898 1965 that allowed Congress to impose preclearance obligations on changes to
1899 election and voting rules in those states with a history of racial discrimination
1900 were constitutionally insufficient to support the continued application of the
1901 preclearance obligations. Id. at 556–57. As the Court phrased it, the
1902 “extraordinary measure[]” of requiring certain “States to obtain federal
1903 permission before enacting any law related to voting” was “a drastic
1904 departure from basic principles of federalism.” Id. at 534–35. Making that
1905 requirement applicable only to some states was “an equally dramatic
1906 departure from the principle that all States enjoy equal sovereignty.” Id. at
1907 535. The Court held that current conditions must justify so wrenching a

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1908 change to constitutional norms as to require states to preclear their laws. Id.
1909 at 536.
1910 Obviously, Shelby County was not a Section 2 case and did not concern
1911 Senate Factor 1. Moreover, we are involved in a less revolutionary task than
1912 distorting the constitutional norms of equal sovereignty. We are considering
1913 a range of circumstances, including history, that the Supreme Court has
1914 identified to help us evaluate a State’s recent redistricting decision. The
1915 Shelby County decision thus does not provide us with relevant guidance.
1916 Further, the Defendants rely on a recent Fifth Circuit opinion which
1917 held that the circumstances surrounding the adoption of Mississippi’s 1890
1918 Constitution did not invalidate voting qualifications as currently applied in
1919 the state. Harness v. Watson, 47 F.4th 296, 306–307, 311 (5th Cir. 2022) (en
1920 banc), cert. denied, 143 S. Ct. 2426 (2023). That was an Equal Protection
1921 claim for which the Fifth Circuit had to decide whether the invidious intent
1922 behind the initial measure was relevant after later amendments. Id. at 299,
1923 303. There was no analysis of Senate Factor 1. See generally id.
1924 The Defendants urge us to interpret a 2001 Fifth Circuit opinion
1925 applying the Voting Rights Act as closing the door to any review of older
1926 history. Doc [219], 60 ¶ 206. The opinion concerned Mississippi’s being
1927 divided into three districts for election of state supreme court justices and
1928 members of two state commissions. NAACP v. Fordice, 252 F.3d 361, 364
1929 (5th Cir. 2001). The court remarked that “the abysmal reality of
1930 Mississippi’s history of official discrimination regarding the right of African–
1931 Americans to register and to vote is evident in the record,” and “that
1932 African–Americans in Mississippi are less educated, suffer from higher
1933 unemployment, earn lower incomes, and live in disparate conditions as
1934 compared to Mississippi’s white citizens.” Id. at 367. The court then stated
1935 that unless plaintiffs show “these facts ‘actually hamper the ability of

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1936 minorities to participate,’” the evidence does not “support a finding that
1937 minorities suffer from unequal access to Mississippi’s political process.” Id.
1938 (quoting LULAC v. Clements, 999 F.2d at 866). We consider the Fifth
1939 Circuit’s holding to focus on what is not enough by itself, not to limit what
1940 we are to consider as to the totality.
1941 We find no bar in Shelby County, Fordice, or Harness as to when older
1942 history becomes too attenuated or diluted by later events to be relevant in a
1943 Voting Rights Act claim. There is, however, a clear statement in a Fifth
1944 Circuit Voting Rights Act opinion: “[T]he most relevant historical evidence
1945 is relatively recent history, not long-past history,” but “even long-ago acts of
1946 official discrimination give context to the [Gingles] analysis.” Veasey v.
1947 Abbott, 830 F.3d 216, 232, 257 (5th Cir. 2016) (quotation marks and citation
1948 omitted). At least for context, then, early history of discrimination has
1949 relevance.
1950 For all that, there is no reason to summarize the evidence concerning
1951 the earlier history and determine its precise relevance. The Defendants have
1952 accepted the accuracy of the statement in one precedent “[t]hat Mississippi
1953 has a long and dubious history of discriminating against blacks is
1954 indisputable.” Teague, 92 F.3d at 293–94. We find, based on the evidence
1955 introduced in this case, that the long and dubious history, with significant
1956 acts of violence still occurring, lasted at least through the 1960s. We examine
1957 what has occurred since then.
1958 Though we just disclaimed full consideration of early history, we will
1959 start with the Plaintiffs’ arguments concerning how certain provisions in the
1960 1890 Mississippi Constitution continue to have discriminatory effects. Two
1961 of the Plaintiffs’ expert witnesses, the previously mentioned Dr. Marvin King
1962 and Jackson State University Professor Robert Luckett, elaborated on the
1963 effects of the 1890 constitution. The constitution contained both a poll tax

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1964 and literacy test, allowed for the creation of all-white primaries and
1965 segregated education, and created a means to disenfranchise black
1966 Mississippians, though it also could have operated to prevent poor and poorly
1967 educated whites from voting. Trial Tr. 375:4–377:22, 379:2–17, 421:10–
1968 422:16. Of these provisions, the only identified provisions still in effect in
1969 Mississippi are a lifetime disenfranchisement of those convicted of certain
1970 crimes and a residency requirement. Trial Tr. 451:13–452:2, 454:15–456:16.
1971 There was evidence that only the disenfranchisement provision continues to
1972 disproportionately disenfranchise black citizens. The Fifth Circuit
1973 concluded that this current, somewhat-amended list of disenfranchising
1974 crimes has been shorn of its original discriminatory purpose. Harness, 47
1975 F.4th at 306–307, 311.
1976 Under Section 2 of the Voting Rights Act, though, we are concerned
1977 with whether there are discriminatory effects. Plaintiffs’ expert Dr. Byron
1978 D’Andra Orey testified that “formerly incarcerated individuals are less likely
1979 to participate in politics” in Mississippi and that “African-Americans are
1980 disproportionately incarcerated.” Trial Tr. 519:22–25. Dr. Orey opined that
1981 Mississippi’s disenfranchising laws cause a huge racial disparity in whether
1982 black Mississippians are able to participate in voting. Id.; see Trial Tr.
1983 569:19–571:13. Dr. Orey further identified that Mississippi’s severe lifetime-
1984 disenfranchisement law and black Mississippians’ overrepresentation in the
1985 criminal-justice system lead to black Mississippians being 12 percent less
1986 likely to vote while white Mississippians are one percent less likely to do so.
1987 PTX-008, 19–20; see Trial Tr. 569:19–571:13. Dr. Luckett, another Plaintiffs’
1988 expert, presented further evidence that black Mississippians are incarcerated
1989 at disproportionately higher rates than whites. Trial Tr. 416:6–13. We are
1990 not concerned here with policy justifications, only whether the
1991 disenfranchisement provision is disproportionate in its effects. We accept

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1992 the testimony as credible that it does leave a higher percentage of black than
1993 white Mississippians ineligible to vote.
1994 The two Plaintiffs’ experts also found racial discrimination in the
1995 State’s rules for nominating candidates. Dr. King found that in 1972, the
1996 legislature first adopted the requirement that party primaries include a runoff
1997 if no candidate receives a majority, and that the adoption was “an effort to
1998 minimize nascent Black voting strength.” PTX-013, 16–17. That is factually
1999 incorrect. The statute Dr. King cites as creating the requirement of runoff
2000 primaries was the recodification of a prior statute into a new Mississippi Code
2001 adopted in 1972. See MISS. CODE ANN. § 23–3–69 (1972) (recodifying MISS.
2002 CODE § 3194 (1942)). A still earlier statute was the first to mandate runoff
2003 primaries. See MISS. CODE § 3701 (1906).
2004 The Plaintiffs do not argue that party primaries are discriminatory.
2005 Their arguments solely apply to the runoff requirement. Because the only
2006 testimony to support a discriminatory purpose to runoff primaries was
2007 inaccurate, we find no racial motive behind adoption of the requirement.
2008 Regardless of motive, though, runoff primaries qualify as potential
2009 evidence relevant to Senate Factor 3 as a majority-vote requirement that
2010 could provide an opportunity for discrimination. Any discriminatory effect
2011 of the runoffs applies only to party nominations, not to general elections. In
2012 fact, the report by Plaintiffs’ expert Dr. Lisa Handley stated that “candidates
2013 supported by black voters usually managed to win the Democratic
2014 nomination.” PTX-004, 13. Her trial testimony was arguably even stronger:
2015 “[E]ven if voting is [racially] polarized in the Democratic primary, it’s
2016 relatively easy, because so few whites participate in the Democratic primary
2017 for the candidate of choice of Black voters to succeed in the Democratic
2018 primary.” Trial Tr. 296:4-8. We find that the Plaintiffs did not present

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2019 evidence to support that runoff primaries enhance the opportunities to

2020 discriminate against black voters in Mississippi.
2021 The Plaintiffs also criticize a 2023 statute governing the removal of
2022 names, or purging, from the voting rolls. See H.B. 1310, 2023 Leg., Reg.
2023 Sess., 2023 Miss. Laws, ch. 534 (codified as MISS. CODE ANN. § 23-15-153).
2024 It provides that, along with other reasons, names of registered voters may be
2025 removed from the voter rolls if they have “failed to comply with the
2026 provisions of Section 23-15-152.” MISS. CODE ANN. § 23-15-153(1). Both
2027 the referenced Section 23-15-152 and a federal statute allow removal of
2028 voters’ names when they have not voted for two consecutive federal
2029 elections. Compare MISS. CODE ANN. § 23-15-152(4), with 52 U.S.C.
2030 § 20507(d)(1)(B)(ii). Federal law also requires that state policies be
2031 nondiscriminatory and not result in the removal of a registered voter who has
2032 voted or appeared to vote in one of the past two general federal elections. 52
2033 U.S.C. § 20507(b)(1)–(2). We have not been shown how the Mississippi
2034 statutes on removing names of those who have not voted violate any federal
2035 law.
2036 Another of the Plaintiffs’ claims concerns Mississippi’s absentee-
2037 voting rules. Mississippi restricts absentee voting to voters with one of eight
2038 acceptable excuses. MISS. CODE ANN. § 23–15–713(a)–(h). Requesting an
2039 absentee ballot by mail may also require notarization. See § 23–15–627. The
2040 Plaintiffs do not claim, and we do not hold, that the State is violating the legal
2041 rights of voters in having more restrictive absentee-voting practices and not
2042 allowing early voting. Those are policy decisions on the proper procedures
2043 for conducting elections. A more traditional state might not embrace all the
2044 current options for voting other than in person on election day. The factual
2045 issue under Senate Factor 3, however, is whether identified voting
2046 procedures tend to enhance the opportunity for discrimination against the
2047 minority group. Dr. Luckett testified that Mississippi’s restrictions on

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2048 absentee voting disproportionately impact black voters who rely on absentee
2049 voting in greater proportions than white voters due to financial hardships,
2050 work requirements, and health disparities. Trial Tr. 403:18–408:9. We
2051 credit that testimony. The main factor allegedly driving the disproportionate
2052 impact is the nature of black poverty. See Trial Tr. 404:19–406:20.
2053 The Plaintiffs also claim a recent statutorily implemented voting
2054 practice disproportionately affects black voters. In 2023, the legislature
2055 enacted House Bill 1020, which expanded the already existing Capitol
2056 Complex Improvement District of Jackson (“CCID”). See H.B. 1020, 138th
2057 Leg., Reg. Sess., 2023 Miss. Laws, ch. 546. Dr. Luckett asserted the
2058 expansion of the police force and court system in the CCID now
2059 encompassed “what constitutes 100 percent of the measurable white
2060 population in the city of Jackson.” Trial Tr. 411:4–6. Dr. Luckett claimed
2061 this enactment was “part of a long history and a continuum of attempts to
2062 diminish and disfranchise African-Americans in the state of Mississippi from
2063 1868 to the present.” Trial Tr. 413:2–4.
2064 Dr. Luckett’s testimony was based on a provision of the enactment
2065 that created four temporary judgeships to be appointed by the State’s chief
2066 justice. See H.B. 1020, supra, at sec. 1. Because black residents compose 83
2067 percent of the Jackson population, Dr. Luckett asserted those unelected
2068 judges would disproportionately impact black voters. See Trial Tr. 412.
2069 Events have overtaken the issue. In September 2023, the Mississippi
2070 Supreme Court held that creating four temporary appointed judgeships with
2071 terms just short of four years violated the state constitution. Saunders v.
2072 State, 371 So. 3d 604, 608 (Miss. 2023). On the other hand, the court
2073 recognized the chief justice’s long-existing and frequently utilized statutory
2074 authority to appoint special judges to assist a “judicial district in Mississippi
2075 facing exigent circumstances.” Id. (emphasis in original); see also MISS. CODE

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2076 ANN. § 9–1–105(2). Such judgeships would end when the exigencies ended.
2077 See Saunders, 371 So. 3d at 608. We thus find that the allegedly
2078 disenfranchising aspects of H.B. 1020 are gone. Moreover, the state court’s
2079 analysis revealed that the same power to appoint temporary judges had
2080 already been granted to the chief justice. The part of H.B. 1020 that was
2081 invalidated was essentially a duplication of existing authority, though the
2082 prior statute did not mandate its immediate use in a specific locale as did H.B.
2083 1020. The differences between the chief justice’s authority under the two
2084 statutes is an insufficient basis to find a dilution of black voting rights.
2085 The Defendants urge that under Senate Factor 1 we consider the
2086 history of legislative redistricting. The Defendants suggest we start with
2087 redistricting after the 2000 census. We instead will begin one decade earlier,
2088 when a three-judge district court rejected the Mississippi Legislature’s plan
2089 adopted after the 1990 census and which had been used in the 1991 election;
2090 the court ordered a new election in 1992 under a court-ordered plan. Watkins
2091 v. Mabus, 771 F. Supp. 789, 797–98, 807 (S.D. Miss. 1991), aff’d in part,
2092 vacated in part, 502 U.S. 954 (1991). The Defendants are correct, though,
2093 that the next two redistricting plans for the legislature, adopted after the 2000
2094 and 2010 censuses, were precleared by the Department of Justice under the
2095 then-operative requirements of the Voting Rights Act.
2096 Less favorable evidence concerns congressional redistricting. The
2097 Plaintiffs’ only argument regarding congressional redistricting was in one
2098 sentence detailing Mississippi’s need to draw new Section 5-compliant
2099 congressional districts in 2002. See generally Smith v. Clark, 189 F. Supp. 2d
2100 503 (S.D. Miss. 2002). The additional court opinions that have often found
2101 those districts to violate either the Constitution or the Voting Rights Act are
2102 available to us for consideration as well. We consider them.

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2103 The legislature drew new congressional districts in 1981, but the
2104 United States Attorney General objected to the districts under the
2105 preclearance requirement of Section 5 of the Voting Rights Act. See Jordan
2106 v. Winter, 541 F. Supp. 1135, 1138 (N.D. Miss. 1982). The 1982 primaries
2107 and general elections were held under an interim redistricting plan designed
2108 by a three-judge district court. Id. at 1144–45. That court’s 1982 decision
2109 was later vacated and the case remanded by the Supreme Court “for further
2110 consideration in light of Section 2 of the Voting Rights Act of 1965, 42 U.S.C.
2111 [§] 1973, as amended in 1982.” Brooks v. Winter, 461 U.S. 921, 921 (1983).
2112 That amendment allowed a finding of a Section 2 violation if the results of a
2113 measure relating to voting, regardless of intent, denied or abridged voting
2114 rights. See Voting Rights Act Amendments of 1982, Pub. L. No. 97–205, § 3,
2115 96 Stat. 131, 134 (codified as amended 52 U.S.C. § 10301). On remand, the
2116 district court imposed a new map that increased the black voting-age
2117 population in the Second District. Jordan v. Winter, 604 F. Supp. 807, 810,
2118 814 (N.D. Miss.), aff’d sub nom. Mississippi Republican Exec. Comm. v. Brooks,
2119 469 U.S. 1002 (1984).
2120 There was no litigation over the Mississippi Legislature’s plan for
2121 congressional districts after the 1990 Census. That is the most recent
2122 congressional redistricting that has not been challenged.
2123 After the 2000 Census, which led to Mississippi’s loss of one
2124 congressional seat, the legislature failed to adopt a redistricting plan in time
2125 for the 2002 election filing deadlines. See Smith, 189 F. Supp. 2d at 504–05.
2126 Therefore, a three-judge district court devised a redistricting plan and
2127 ordered that it be used for the 2002 elections and every succeeding election
2128 until the State produced an acceptable plan. Smith v. Clark, 189 F. Supp. 2d
2129 548, 559 (S.D. Miss. 2002). The Supreme Court affirmed. Branch v. Smith,
2130 538 U.S. 254, 265 (2003).

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2131 After the 2010 Census, the same three-judge district court found the
2132 new census rendered the court’s 2002 plan malapportioned, but the
2133 legislature had yet to produce a viable new plan for use in the 2012 elections.
2134 Smith v. Hosemann, 852 F. Supp. 2d 757, 760–61 (S.D. Miss. 2011). The court
2135 developed a plan to which no party objected, and the court in 2011 ordered
2136 its use until the State produced an acceptable plan. Id. at 765–67.
2137 After the 2020 Census, the legislature adopted its own congressional-
2138 redistricting plan. Smith v. Hosemann, No. 3:01-cv-855, 2022 WL 2168960,
2139 *1 (S.D. Miss. May 23, 2022). The defendants moved to vacate the 2011
2140 order, while the plaintiffs insisted the legislature’s plan was invalid. Id. at *1–
2141 2. The district court vacated the 2011 injunction, allowing the legislature’s
2142 plan to go into effect, but it also held that the plaintiffs were not barred from
2143 seeking relief under the Voting Rights Act. Id. at *8. The United States
2144 Supreme Court dismissed for lack of jurisdiction. Buck v. Watson, 143 S. Ct.
2145 770 (2023). There have been no further proceedings in that case.
2146 Thus, unlike for legislative redistricting after the 2000 and 2010
2147 censuses when there were no challenges to those plans, the legislature has
2148 been held to violate the Voting Rights Act in drawing new congressional
2149 districts in 1980, then in not drawing any in 2000 and 2010. This is some
2150 evidence of a continuation of official discrimination.
2151 To summarize, this factor is about history. When the United States
2152 Supreme Court upheld a district court’s finding in Milligan that the evidence
2153 supported Senate Factor 1, the Court quoted the district court finding that
2154 “Alabama’s extensive history of repugnant racial and voting-related
2155 discrimination is undeniable and well documented.” Milligan, 599 U.S. at 22
2156 (quoting Singleton, 582 F. Supp. 3d at 1020). We examine the Alabama
2157 district court’s opinion to determine what the Supreme Court found
2158 sufficient. The district court included these events:

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2159 (1) A successful constitutional challenge to legislative redistricting

2160 after the 2010 census. Singleton, 582 F. Supp. 3d at 1020. The Alabama suit
2161 concerned congressional redistricting yet considered constitutional defects
2162 in prior legislative redistricting. Our facts are a mix, such that in this
2163 challenge to the legislature’s redistricting we have considered challenges in
2164 Mississippi both for Congress and for the legislature. We find that record to
2165 be of at least comparable weight as the record in Alabama.
2166 (2) A successful challenge to “local at-large voting systems with
2167 numbered post created by the State Legislature.” Id. at 1021. This is another
2168 example of a successful challenge to a legislative measure, and we have
2169 identified relatively recent and successful litigation in Mississippi both for
2170 congressional and legislative redistricting.
2171 (3) “[T]he Justice Department has sent election observers to
2172 Alabama nearly 200 different times, and . . . between 1965 and 2013, more
2173 than 100 voting changes proposed by the State or its local jurisdictions were
2174 blocked or altered under Section 5 of the Voting Rights Act.” Id. Here, the
2175 Justice Department issued 81 voting-determination letters to Mississippi
2176 counties between 1985 and 2012, ordering districts be redrawn and voting
2177 practices be amended (PTX-063; Trial Tr. 396:16–400:12); Mississippians
2178 have successfully challenged at-large election procedures (PTX-007, 29–30;
2179 Trial Tr. 389:3–390:25); and more restrictive voting changes proposed by
2180 Mississippi were enjoined by federal courts (PTX-007, 38; Trial Tr. 405:24–
2181 406:9; 407:1–408:9; 1231:25–1232:12).
2182 We consider the evidence here to be comparable to what the Milligan
2183 Court found satisfied the first and third Senate Factors for Alabama. To be
2184 sure, Mississippi is a much different state today than during the period of its
2185 “long and dubious history of discriminating against blacks.” Teague, 92 F.3d
2186 at 293–94. Nonetheless, we find more recent events still cause the first and
2187 third Senate Factors to weigh in favor of the Plaintiffs.

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2188 b. Senate Factor 2

2189 Senate Factor 2 measures “the extent to which voting in the elections
2190 of the state or political subdivision is racially polarized.” S. REP. NO. 97-417,
2191 at 29. Said differently, the factor considers “racial bloc voting.” Gingles, 478
2192 U.S. at 52 n.18; see also S. REP. NO. 97-417, at 55.
2193 As explained before, Senate Factor 2 overlaps with Gingles
2194 precondition three, which is also routinely described as concentrating on
2195 racial polarization. See, e.g., Milligan, 599 U.S. at 19 (identifying Gingles
2196 precondition three as “focused on racially polarized voting”). We have
2197 concluded under Gingles precondition three that the Plaintiffs met their
2198 burden and the Defendants failed to rebut it. We now consider the issue
2199 under the totality of the circumstances.
2200 When viewed under the totality of the circumstances, racial bloc
2201 voting is one of the two most important factors, the other being minority
2202 candidates’ success or failure in elections. Gingles, 478 U.S. at 48 n.15 (citing
2203 S. REP. NO. 97-417, at 28–29). If both factors are “present, the other factors
2204 . . . are supportive of, but not essential to, a minority voter’s claim.” Id.
2205 (emphasis omitted).
2206 To begin, the scope of relevant evidence is broader at this stage. While
2207 we focused our review of the Gingles preconditions on the districts at issue,
2208 we may consider more under the totality analysis. See LULAC v. Perry, 548
2209 U.S. at 438 (citing Gingles, 478 U.S. at 44–45) (noting that statewide
2210 evidence has been used under other Senate Factors and finding it
2211 “[p]articularly” appropriate under the proportionality factor “given the
2212 presence of racially polarized voting . . . throughout Texas”); see also
2213 Milligan, 599 U.S. at 22 (relying on statewide evidence under totality of
2214 circumstances); Fordice, 252 F.3d at 370 (noting that exogeneous elections
2215 are probative under Senate Factor 2).

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2216 Turning to the facts, the parties agree that Mississippians vote along
2217 racial lines. But under the totality-of-the-circumstances analysis, “[a]
2218 defendant may try to rebut plaintiffs’ claim of vote dilution via evidence of
2219 ‘objective, nonracial factors.’” Teague, 92 F.3d at 292 (quoting Nipper v.
2220 Smith, 39 F.3d 1494, 1513 (11th Cir. 1994)). The Defendants take that
2221 approach, arguing that the existing polarization is not “on account of race”
2222 because Mississippi voters are “driven by partisan polarization rather than
2223 racial polarization.” Doc [219] ¶ 233. 8
2224 The parties say the Court must determine whether partisan affiliation
2225 or race “best explains the divergent voting patterns among minority and
2226 white citizens.” Doc [219] ¶ 183 (citation omitted); see Doc [220] ¶ 677; see
2227 also Lopez v. Abbott, 339 F. Supp. 3d 589, 602–03 (S.D. Tex. 2018) (applying
2228 similar standard). That test comes from LULAC v. Clements, a Section 2 case
2229 filed by black and Hispanic residents challenging the way Texas elected its
2230 trial judges. 999 F.2d at 838.
2231 The LULAC v. Clements district court held that “plaintiffs need only
2232 demonstrate that whites and blacks generally support different candidates to
2233 establish legally significant white bloc voting.” Id. at 850. The Fifth Circuit
2234 reversed, agreeing with the defendants that “the record indisputably
2235 prove[d] that partisan affiliation, not race, best explain[ed] the divergent
2236 voting patterns among minority and white citizens in the contested

_____________________
8
The Supreme Court recently considered a race-versus-partisanship issue in
Alexander, 144 S. Ct. 1221. The plaintiffs’ claim, though, was of racial gerrymandering
violative of the Equal Protection Clause, and the question before the court was whether
“race predominated in the drawing of a district.” Id. at 1252. The Alexander plaintiffs did
“not rely on the Voting Rights Act of 1965,” nor did the defendants. Id. (Thomas, J.,
concurring in part). Though the Alexander Court considered a similar issue to the one
before us, its decision is inapplicable to effects-based review under Section 2 of the Voting
Rights Act. See Milligan, 599 U.S. at 13 (discussing the effects standard).

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2237 counties.” Id. (emphasis added). The appellate court also observed that
2238 “[a]bsent evidence that minorities have been excluded from the political
2239 process, a ‘lack of success at the polls’ is not sufficient to trigger judicial
2240 intervention.” Id. at 853 (quoting City of Mobile v. Bolden, 446 U.S. 55, 109
2241 (1980) (Marshall, J., dissenting)). 9
2242 The LULAC v. Clements court found no evidence that minorities had
2243 been excluded from the political process on account of race. Id. at 861.
2244 Instead, it found facts “unmistakably” proving “partisan affiliation,” not
2245 race, defeated the minority-backed judicial candidates in Texas. Id. “First,
2246 white voters constitute[d] the majority of not only the Republican Party, but
2247 also the Democratic Party, even in several of the counties in which the former
2248 dominate[d].” Id. Second, both parties, “especially the Republicans,
2249 aggressively” nominated minority candidates who were then supported
2250 “without fail” by white voters just as much as those voters supported white
2251 candidates. Id. Finally, the court found no evidence that white elected
2252 officials were unresponsive to minority constituents, something the court
2253 considered a hallmark of racial bloc voting. Id. at 858–59.
2254 This case is different. While we recognize that our review requires a
2255 “‘functional’ and ‘practical’” examination rather than a mechanical
2256 checklist of the facts that buttressed the LULAC v. Clements opinion, id. at
2257 861, none of those facts exist here. There is no proof that whites constitute a
2258 majority of the Democratic Party, that Republicans aggressively recruit and
2259 unfailingly support black Republican candidates, or that elected white
2260 officials respond to black constituents as they did in Texas.

_____________________
9
The Supreme Court has never applied a best-explains test, but it has not overruled
that binding precedent.

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2261 On the responsiveness question, the parties addressed various public

2262 issues and whether the Republican-dominated legislature has been receptive
2263 to the stated desires of black voters. We are more persuaded, though, by
2264 witnesses Joseph Wesley, Kenneth Harris, Pamela Hamner, Gary
2265 Fredericks, and Terry Rogers who all testified — without contradiction —
2266 that their elected officials ignore the black community. Trial Tr. 669:3–670:8
2267 (Wesley); 698:15–699:16, 702:9–14 (Harris); 726:10–727:2 (Hamner);
2268 906:20–907:18 (Fredericks); 943:22–944:3 (Rogers). According to LULAC
2269 v. Clements, these facts indicate racial bloc voting and not partisan bloc
2270 voting. 999 F.2d at 859; see also Rogers v. Lodge, 458 U.S. 613, 623 (1982)
2271 (noting that racial bloc voting “allows those elected to ignore [minority]
2272 interests without fear of political consequences”).
2273 Not only are the salient LULAC v. Clements facts missing here, but we
2274 also find no analogous facts exist in this record. Instead, the Plaintiffs
2275 presented credible evidence that the “political process is not ‘equally open’
2276 to minority voters.” Milligan, 599 U.S. at 18 (quoting Gingles, 478 U.S. at
2277 45–46) (summarizing a plaintiff’s burden under the totality-of-the-
2278 circumstances test). As noted above, the Enacted Plans split black
2279 communities like Horn Lake and Jago. See Section IV(B)(1)(b), supra. As a
2280 result, there is no dispute that black voters are disproportionally located in
2281 districts in which they are the minority. Under the Enacted Senate Plan,
2282 84.33 percent of white voters live in white-majority districts while only 50.36
2283 percent of black voters live in black districts. PTX-001, 50. A similar
2284 disparity exists under the Enacted House Plan — 82.92 percent of whites live
2285 in majority districts compared to just 62.38 percent of black voters. PTX-
2286 001, 74.
2287 Once in those minority districts, it is almost impossible for a black-
2288 preferred candidate to prevail because crossover voting is nearly non-
2289 existent. We credit Dr. Handley’s testimony regarding “stark” polarization

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2290 across varied local and statewide elections. Trial Tr. 266:7; see also Section
2291 IV(B)(2)(a)–(c), supra. When Dr. Handley considered votes in the areas of
2292 interest during statewide elections, black voters supported black Democrats
2293 94.3 percent of the time while white voters crossed over at only a 6.9 percent
2294 rate. That crossover number rose to 9.1 percent when the Democrat was
2295 white. PTX-004, 11–12.
2296 Other courts have found that crossover percentages like these support
2297 a finding of racial bloc voting. Most notably in Milligan, the district court
2298 found racial bloc voting under Gingles two and three where “on average,
2299 Black voters supported their candidates of choice with 92.3 [percent] of the
2300 vote” while “white voters supported Black-preferred candidates with 15.4
2301 [percent] of the vote.” 599 U.S. at 22 (quoting Singleton, 582 F. Supp. 3d at
2302 1017). The Supreme Court affirmed. Id. at 23, 42.
2303 A similar result followed in Robinson v. Ardoin, when white crossover
2304 voting was around 11.7 percent in statewide elections (per Dr. Handley) and
2305 about 20.8 percent in “a different set of elections” (per another expert
2306 witness). 605 F. Supp. 3d 759, 842 (M.D. La. 2022), vacated and remanded,
2307 86 F.4th 574 (5th Cir. 2023) (affirming finding of Section 2 violation but
2308 vacating injunction as legislature prepared new map). Black voters’ support
2309 for their chosen candidates averaged 83.8 percent and rose to 93.5 percent in
2310 two-person races. Id. at 801. The Fifth Circuit addressed “racial
2311 polarization” under the third Gingles precondition and affirmed the finding
2312 that the plaintiffs proved its existence. Robinson, 86 F.4th at 597. The
2313 averages for Mississippi resemble — if not surpass — those in Milligan and
2314 Robinson.
2315 The extent of that polarization further distinguishes LULAC v.
2316 Clements, which found no legal significance to “blacks generally support[ing]
2317 different candidates” than whites. 999 F.2d at 850. That case did not

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2318 consider polarization of this magnitude or the effect it has on open

2319 participation when coupled with cracking and packing. We find as a factual
2320 matter the extent of the polarization between races across Mississippi
2321 provides at least circumstantial evidence that the divide is based on race.
2322 This is not, however, the only evidence; other facts make this case
2323 much like Milligan. There, the Supreme Court explained that the plaintiffs
2324 had carried their burden at the totality-of-the-circumstances stage because
2325 “elections in Alabama were racially polarized; . . . ‘Black Alabamians
2326 enjoy[ed] virtually zero success in statewide elections’; . . . political
2327 campaigns in Alabama had been ‘characterized by overt or subtle racial
2328 appeals’; and . . . ‘Alabama’s extensive history of repugnant racial and
2329 voting-related discrimination [was] undeniable and well documented.’” 599
2330 U.S. at 22 (quoting Singleton, 582 F. Supp. 3d at 1018–24). Though Alabama
2331 did not appeal the totality holding, the Supreme Court still found no reason
2332 to dispute the district court’s “careful factual findings,” id. at 23, including
2333 the finding that Senate Factor 2 “weigh[ed] heavily in favor of the”
2334 plaintiffs’ Section 2 claim because the “pattern of racially polarized voting
2335 [was] clear, stark, and intense,” Singleton, 582 F. Supp. 3d at 1018.
2336 These facts are equally true here in Mississippi. The two states share
2337 a similar history, and neither has elected a black candidate in a statewide
2338 election since Reconstruction. Trial Tr. 752:19–25, 788:14–18. Also, black
2339 legislative candidates in Mississippi have had virtually no success in federal
2340 or state elections outside majority-black districts. Trial Tr. 310:6–9, 388:10–
2341 389:2, 789:1–7. We find that the Plaintiffs have shown racially polarized
2342 voting under the totality of the circumstances.
2343 The Defendants attempt to rebut all this, however, and argue
2344 Mississippians vote based on party, not race. To begin, they say we should
2345 consider two Equal Protection cases that addressed the politics-versus-race

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2346 issue: White v. Regester, 412 U.S. 755 (1973), and Whitcomb v. Chavis, 403
2347 U.S. 124 (1971). “Congress codified the ‘results’ test [the Supreme Court]
2348 had employed, as an interpretation of the Fourteenth Amendment, in White
2349 and Whitcomb.” LULAC v. Clements, 999 F.2d at 851 (quoting Gingles, 478
2350 U.S. at 97 (O’Connor, J., concurring in the judgment)). To the extent they
2351 are relevant, our case is like White, not Whitcomb.
2352 In White, the Court found Equal Protection violations in some Texas
2353 districts based on evidence of lack of minority political success since
2354 Reconstruction, a history of discrimination, voting requirements that
2355 depressed minority votes, racial campaign tactics, and a lack of
2356 responsiveness from elected officials in minority communities. 412 U.S. at
2357 765–69; see also S. REP. NO. 97-417, at 21–22. Our facts and record are similar.
2358 By contrast, the Court found in Whitcomb that politics, not race,
2359 motivated the disputed election practices because there were no
2360 impediments to black participation and black-preferred and minority
2361 candidates enjoyed some success at the polls with support of white voters.
2362 403 U.S. at 149–50. According to LULAC v. Clements, Whitcomb
2363 established a clean divide between actionable vote dilution and
2364 “political defeat at the polls”; the 1982 amendments [were]
2365 enacted to restore a remedy in cases “where a combination of
2366 public activity and private discrimination have joined to make
2367 it virtually impossible for minorities to play a meaningful role
2368 in the electoral process.”
2369 999 F.2d at 850–51 (emphasis omitted) (quoting Hearings on the Voting Rights
2370 Act Before the Subcomm. on the Constitution of the S. Comm. of the Judiciary,
2371 97th Cong., 2d Sess. 1367–68 (1982) (statement of Professor Drew Days)).
2372 Again, the Plaintiffs have shown that impediments do exist in Mississippi —
2373 for example being disproportionately placed in minority districts — and that

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2374 they have had almost no success electing their candidates of choice outside
2375 majority-minority districts.
2376 The Defendants also rely on Dr. Alford’s expert opinion that
2377 partisanship explains the polarization Dr. Handley’s data reveals. Although
2378 we have considered all opinions Dr. Alford offered, none convince us that the
2379 Defendants have overcome the Plaintiffs’ showing of racially polarized
2380 voting. We will, however, address a few examples.
2381 Dr. Alford identifies select races in predominantly white house
2382 districts where Dr. Handley’s statistics have massive confidence intervals,
2383 indicating uncertainty. See DX-001, 11 (Alford Report). It may be true
2384 uncertainty exists, but Dr. Handley explained that districts with small
2385 minority populations are harder to evaluate. Trial Tr. 278:5–11, 288:2–18.
2386 That statistical reality does not outweigh the breadth of Dr. Handley’s
2387 opinions and supporting evidence about stark racial bloc voting, nor does it
2388 offer rebuttal evidence to meet the Defendants’ burden.
2389 Another fact Dr. Alford relies on is the recent success of a lone black
2390 Republican candidate in a legislative election. Trial Tr. 1470:18–23. The
2391 same thing happened in Milligan, but the district court held under Senate
2392 Factor 2 that “[o]ne election of one Black Republican is hardly a sufficient
2393 basis . . . to ignore . . . the veritable mountain of undisputed evidence that in
2394 all the districts at issue in this case, and in all statewide elections, voting in
2395 Alabama is polarized along racial lines.” Singleton, 582 F. Supp. 3d at 1019.
2396 The Supreme Court took no issue with these Senate Factor 2 findings. 599
2397 U.S. at 23. In any event, “proof that some minority candidates have been
2398 elected does not foreclose a [Section] 2 claim.” Gingles, 478 U.S. at 75; see
2399 Clark, 88 F.3d at 1397 (“‘[T]he election of a few minority candidates does
2400 not necessarily foreclose the possibility of dilution of the black vote.’”
2401 (citation omitted)).

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2402 Dr. Alford generally says black voters support white Democrats in
2403 equal measure with black Democrats, thus demonstrating that partisanship is
2404 the answer. Trial Tr. 1521:4–15. That statement is superficially true but fails
2405 to consider the record evidence explaining why black voters might choose
2406 white Democrats — like support for issues important to black citizens. And
2407 even Dr. Alford acknowledges that “it’s possible for political affiliation to be
2408 motivated by race.” Trial Tr. 1537:3–6. Yet he never examined the political
2409 positions of the two state parties — or any candidates — to determine
2410 whether race factored into partisan voting. Trial Tr. 1504:9–25. Another
2411 defense expert, Dr. Brunell, has written that “the split between the political
2412 parties rests on a racial division.” Trial Tr. [Link]–22. He also testified
2413 that there is “[n]o question” “that racial division . . . is still part of what’s
2414 going on in politics today.” Trial Tr. 1320:5–8.
2415 Dr. Alford also cites the 2012, 2016, and 2020 presidential elections,
2416 when voting percentages remained roughly the same for candidates Barack
2417 Obama, Hillary Clinton, and Joe Biden despite their differing races. DX-001
2418 at 6–7. We mention that, though the 2016 Democratic Presidential ticket had
2419 no black nominee, Joe Biden’s 2020 running mate was Kamala Harris, who
2420 was a black candidate. Additionally, Dr. Alford’s analysis does not consider
2421 how race may factor into partisan voting. As we have explained in our
2422 discussion of Gingles preconditions two and three, the baseline white
2423 opposition to black-preferred candidates is so high — between 92 percent
2424 and 93.6 percent in these three elections, DX-1 at 6–7 — there is little room
2425 for additional white opposition to a black Democratic candidate.
2426 LULAC v. Clements anticipated a similar issue, remaining “sensitive
2427 to the reality that political positions can be proxies for racial prejudice.” 999
2428 F.2d at 879. While acknowledging this possibility, the Fifth Circuit saw no
2429 such concern “where white voters support black candidates of a particular
2430 party in larger percentage than they support white candidates of the same

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2431 party.” Id. In addition, as noted, Senate Factor 2 is part of a “searching

2432 practical evaluation of the ‘past and present reality.’” Milligan, 599 U.S. at
2433 19 (quoting Gingles, 478 U.S. at 79). Given the undisputed history of
2434 polarized voting in Mississippi — including recent history — Dr. Alford has
2435 not convincingly separated race from politics.
2436 Context also matters. The opinions from the Plaintiffs’ expert
2437 historian Dr. King need not be taken as correct in every detail, but in recent
2438 decades the Democratic Party has certainly been the one more closely
2439 associated with civil rights. The Defendants’ expert Dr. Brunell agrees. He
2440 testified that racial division and the Democratic Party’s association with civil
2441 rights “definitely played a role” in party realignment. Trial Tr. 1320:4.
2442 That Mississippi voters have been separated by race even when most
2443 black voters were Republicans and white voters were Democrats adds weight
2444 to our finding that racially polarized voting best explains the divide — at least
2445 on this record. Dr. King testified “that the racial polarization throughout
2446 Mississippi political history precedes the partisan polarization. So the
2447 foundation of any polarization people see is the racial polarization that comes
2448 first, right. Race has always been the preeminent political issue in Mississippi
2449 and so that defines the dividing lines for the parties. So race comes first.
2450 That’s the foundation for polarization.” Trial Tr. 764:21-765:3. 10
2451 To conclude on Dr. Alford, he offered similar testimony in Robinson,
2452 where the court found his “opinions are unsupported by meaningful
2453 substantive analysis” and “border on ipse dixit.” 605 F. Supp. 3d at 840. We
2454 share those concerns. While we accepted Dr. Alford as an expert and find

_____________________
10
We do not hold — nor need we — that realignment was solely race-based or that
every Republican is motivated by it. But the evidence is undisputed that race plays a role.

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2455 that some of his opinions are plausible, he has not overcome Dr. Handley’s
2456 testimony.
2457 In short, we find that the Plaintiffs established racially polarized voting
2458 “on account of race or color” as those words are interpreted by the Senate
2459 Report and the Supreme Court. See Milligan, 599 U.S. at 25 (explaining that
2460 “it is patently clear that Congress has used the words ‘on account of race or
2461 color’ in the Act to mean ‘with respect to’ race or color, and not to connote
2462 any required purpose of racial discrimination” (quoting Gingles, 478 U.S. at
2463 71 n.34). The Defendants’ evidence fails to show that “partisan affiliation,
2464 not race, best explains the divergent voting patterns among minority and
2465 white citizens.” LULAC v. Clements, 999 F.2d at 850.
2466 As in Singleton, when “we look deeper” into the race-versus-politics
2467 issue “we are looking at very little evidence.” 582 F. Supp. 3d at 1018–19.
2468 Although we acknowledge that partisanship plays a role, we agree with Dr.
2469 Brunell that there is “[n]o question” “that racial division . . . is still part of
2470 what’s going on in politics today.” Trial Tr. 1320:5–8. The Defendants’
2471 proof does not outweigh the Plaintiffs’ evidence on this factor, and it
2472 certainly would not make this one of those “very unusual case[s]” where no
2473 violation is found despite establishing the Gingles preconditions. Clark, 21
2474 F.3d at 97 (citation omitted). Senate Factor 2 weighs in favor of the Plaintiffs.
2475 c. Senate Factor 5
2476 This factor considers the extent to which members of the minority
2477 group still bear the effects of discrimination in areas such as education,
2478 employment, and health, and whether as a result they are hindered in their
2479 ability to participate effectively in the political process.
2480 Much of the relevant evidence was offered by Dr. Orey, a professor in
2481 the Department of Political Science at Jackson State University. Trial Tr.
2482 492:13–19. Dr. Orey has both teaching and publication experience in areas

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2483 directly linked with race and its effect on political behavior. Trial Tr. 495:6–
2484 16. He teaches multiple undergraduate- and graduate-level classes regarding
2485 minority politics, black voters in the political system, and applicable research
2486 methods. Trial Tr. 498:1–16. Dr. Orey also has experience conducting voter-
2487 turnout analyses using the EI RxC methodology, conducting descriptive
2488 statistical analyses for Senate Factor 5, and testifying as an expert in
2489 numerous court cases. Trial Tr. 495:25–496:3, 503:4–17, 504:2–16. Based
2490 on these qualifications, we accepted Dr. Orey as an expert in political science,
2491 political participation and behavior, and race and politics. Trial Tr. 506:8–
2492 15.
2493 The Plaintiffs offered Dr. Orey’s testimony specifically to explain the
2494 “social and economic indicators [that] had an impact on voting amongst
2495 African-Americans” and how those “indicators negatively impacted turnout
2496 amongst African-Americans.” Trial Tr. 506:21–24. To conduct this Senate
2497 Factor 5 analysis, Dr. Orey used descriptive statistics like poverty, education
2498 access, turnout data, and EI RxC data to determine whether black citizens
2499 had the ability to effectively participate in Mississippi politics. Trial Tr.
2500 504:23–505:13. These methodologies and data sources Dr. Orey used in his
2501 analysis are ones commonly relied upon among experts in political science.
2502 Trial Tr. 505:14–24.
2503 Dr. Orey started his analysis with a theoretical framework regarding
2504 the resources required for Mississippians to participate in the political
2505 process. PTX-008, 4. We find persuasive his determination that voting and
2506 political participation has economic costs such that whether individual voters
2507 participate is influenced by financial resources, leisure time, and education.
2508 Dr. Orey further concluded black voters face larger disparities than white
2509 voters in areas such as education and income, affecting both the relative
2510 likelihood that they have the resources that are needed to vote and the ability
2511 to participate in the voting process. PTX-008, 3–11.

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2512 We find Dr. Orey is correct that black Mississippians suffer

2513 socioeconomic disparities that impair their ability to participate in the
2514 political process. Black Mississippians are significantly worse off in terms of
2515 income, poverty, unemployment, educational attainment, internet access,
2516 vehicle ownership, and health-insurance coverage. We accept as accurate the
2517 evidence that about 31 percent of black Mississippians live below the poverty
2518 line as compared to about 11.5 percent of white Mississippians. PTX-008, 5.
2519 Dr. Orey testified, based on political-science literature and his own
2520 regression analysis, that there is a strong correlation between financial status
2521 and voter turnout. Trial Tr. 512:10–15, 544:17–546:23. The analysis he
2522 conducted supports that income and poverty have been significant factors
2523 influencing voter participation, generally and specifically in Mississippi.
2524 PTX-008, 27–28.
2525 Dr. Orey quantified racial disparities in Mississippi regarding the level
2526 of education as establishing black citizens have long been segregated from
2527 attaining the needed education for coherent political participation. PTX-
2528 008, 9–12. About 10.3 percent of white Mississippians did not complete high
2529 school, compared to 17.9 percent of black Mississippians. PTX-008, 8. As
2530 to college degrees, 28.5 percent of white Mississippians have a bachelor’s
2531 degree or higher, compared to 18.2 percent of black Mississippians. PTX-
2532 008, 8.
2533 Dr. Orey testified that these educational disparities can be traced to
2534 the long history of both de jure and de facto racial segregation in Mississippi.
2535 Residential patterns and the quality of education located in certain
2536 Mississippi locales, among other things, have resulted in many school
2537 systems being as segregated today as they were decades ago. PTX-008, 9; see
2538 Trial Tr. 512–514. Numerous negative effects of segregation in housing and
2539 education were also identified by Dr. Orey. For example, because of the
2540 racial economic disparities and resulting variations in local tax bases,

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2541 residential segregation results in lower-funded black schools compared to

2542 predominantly white ones. PTX-008, 9.
2543 Dr. Orey described a very strong, “well-established” correlation
2544 between educational attainment and voter turnout such that political-science
2545 literature renders education as a requirement in “virtually” any “analysis of
2546 voting behavior . . . model.” Trial Tr. 515:20–516:1. Education is “one of
2547 the resources that individuals need to vote” in order to “understand[] the
2548 issues” and “navigate the registration process[,]” for instance. Trial Tr.
2549 515:7–19. We accept as fact that there has been a historical pattern, based on
2550 all these factors and perhaps others, that black citizens of Mississippi have
2551 participated in the political process in lower percentages than white citizens.
2552 The factual issue for us is the current effect of these conditions on
2553 black-voter turnout. The disparities continue to exist, but are black
2554 Mississippians currently voting in lower percentages than whites because of
2555 the effects of discrimination? If not, then any past hindrance caused by those
2556 conditions to black citizens’ ability to participate effectively in the political
2557 process has been overcome. Dr. Orey addressed this factual question by
2558 examining voter turnout only in the 2020 general election. Trial Tr. 579:3–
2559 5. The Defendants’ expert Dr. Brunell said it was important to examine
2560 trends over time and one election was inadequate. Trial Tr. 1258:15–1259:5.
2561 We find that examining multiple elections would give a clearer picture, but
2562 we acknowledge that Dr. Orey’s analysis is only weakened, not discredited,
2563 by its consideration of solely 2020.
2564 In his 2020 election analysis, Dr. Orey used three different, generally
2565 accepted methods: (1) ecological-inference analysis based on precinct-level
2566 election results and United States Census racial demographic data; (2)
2567 Bayesian Improved Surname Geocoding (“BISG”) of the Mississippi
2568 Secretary of State’s full voter database (which includes voter history); and

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2569 (3) reviewing estimates from the Cooperative Election Study (“CES”), a
2570 survey where voter turnout behavior is independently validated to eliminate
2571 the known problem of overreporting voting behavior in polls and surveys.
2572 PTX-008, 22–25. Dr. Orey testified that each of these methods showed a
2573 significant gap in turnout between black and white Mississippians. Trial Tr.
2574 642:4–17.
2575 Dr. Orey’s EI RxC estimate was that white turnout in 2020 was 65.84
2576 percent, while black turnout was 56.03 percent. PTX-008, 25. The
2577 Defendants’ response does not significantly challenge the validity of the EI
2578 RxC analysis itself but argues this estimate is unreliable because it is based on
2579 data from one federal election for offices that are not the subject of this suit.
2580 Doc [219], 73. The Defendants’ arguments are legitimate, but we find the
2581 estimates are still sufficiently reliable for our consideration.
2582 Dr. Orey then used BISG to estimate the racial composition of the
2583 Mississippi voter file. BISG is an algorithmic method used to predict a
2584 person’s race or ethnicity based on their last name and where they live on a
2585 map. PTX-008, 24. Applying BISG to a copy of the Mississippi voter file,
2586 which contains voter names, addresses, and voting history from 2020 and
2587 prior elections, Dr. Orey estimated a 69.7 percent turnout rate for white
2588 Mississippi voters, compared to 57.3 percent for black voters. PTX-008, 25.
2589 The Defendants argue Dr. Orey’s BISG analysis uses an incomplete
2590 data set, in part because the contents of the state voter file are so far removed
2591 from the 2020 election. Doc [219], 73–74. Dr. Orey used information from
2592 the file as it existed in June 2022 to infer individuals’ turnout in the
2593 November 2020 general election. The file is continuously updated, and as
2594 voters move and new information is recorded, the file reflects each change.
2595 Dr. Orey acknowledged he had not previously performed a BISG analysis but

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2596 stood behind the results despite there being a 5 percent loss in data. Trial Tr.
2597 583:23–585:10.
2598 Here, too, we do not refuse to consider the analysis. We find the
2599 questions about the accuracy of the data Dr. Orey used for his analysis to be
2600 legitimate but not dispositive.
2601 Finally, Dr. Orey examined turnout by race estimates using the CES,
2602 a 50,000-plus person national stratified sample survey administered by the
2603 polling firm YouGov. PTX-008, 24–25. The CES dataset includes
2604 “validated vote” information, representing an independent authentication of
2605 whether a survey respondent voted, which Dr. Orey used for his analysis.
2606 Trial Tr. 532:24–533:15. Among registered voters, the CES’s validated vote-
2607 turnout estimate was 72.5 percent for black Mississippians in 2020,
2608 compared to 86.8 percent turnout for white Mississippians. PTX-008, 26.
2609 Among all adults, the validated vote-turnout rates estimated by the CES for
2610 2020 were 46.1 percent for black Mississippians and 59.6 percent turnout for
2611 white Mississippians. PTX-008, 26 n.59. Dr. Orey used the weighting
2612 variables corresponding to turnout among registered voters and among all
2613 adults to confirm his observation that a racial gap in turnout existed across
2614 both measures. Trial Tr. 535:22–536:24.
2615 The Defendants identified some errors in the computations, including
2616 voters that should not have been included. The central criticism of these last
2617 calculations by the Defendants’ expert Dr. Brunell is in evaluating the
2618 statistical significance of the figures. Dr. Brunell testified that 0.05 p-value
2619 (probability value) — or a 95 percent confidence level — is typically the
2620 lowest level of statistical significance that is used to determine the reliability
2621 of the estimates. Dr. Orey admitted that a p-value of less than 0.05 means
2622 that one can be 95 percent confident in the estimates. He testified that this
2623 level is the “more stringently and more commonly” used threshold for tests

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2624 of statistical significance. Dr. Orey himself utilized the 95 percent threshold
2625 in some of his analysis.
2626 Dr. Orey acknowledged, however, that his analysis did not quite reach
2627 a p-value of less than 0.05. By his calculations, the statistical significance
2628 level of the racial-turnout gap among all adults in Mississippi (excluding
2629 noncitizens) was 0.058, meaning that one can be “94 percent sure that this is
2630 the correct estimate,” which is a high level of confidence. Trial Tr. 540:2–9.
2631 The confidence level looking at the racial-turnout gap among registered
2632 voters was similar at 0.055. Trial Tr. 543:8–15.
2633 Dr. Orey explained “there’s nothing definitive about [0].05,” yet Dr.
2634 Brunell said there is. Dr. Brunell nonetheless agreed that choosing any
2635 particular threshold as a cutoff was “arbitrary” or “artificial,” and that social
2636 scientists may choose different thresholds. Another of the Plaintiffs’ experts,
2637 Dr. Ragusa, supported this statement and explained that for statistical
2638 significance, “a p-value of less than .1, but not less than .05, is one of [the]
2639 options” and “more people, in my judgment, are using a p-value of less than
2640 [0].1 as a minimally significant result.”
2641 Disputes among the experts about statistical significance have arisen
2642 in other cases. We accept the view of a Ninth Circuit opinion that insofar as
2643 admissibility is concerned, “[a]s a general matter, so long as the evidence is
2644 relevant and the methods employed are sound, neither the usefulness nor the
2645 strength of statistical proof determines admissibility under Rule 702.” Obrey
2646 v. Johnson, 400 F.3d 691, 696 (9th Cir. 2005). This evidence was properly
2647 admitted. Once admitted, how we as factfinders consider the evidence is the
2648 issue. The Seventh Circuit was particularly dismissive of the 95 percent
2649 standard:
2650 Litigation generally is not fussy about evidence; much
2651 eyewitness and other nonquantitative evidence is subject to

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2652 significant possibility of error, yet no effort is made to exclude

2653 it if it doesn’t satisfy some counterpart to the 5 percent
2654 significance test.
2655 Kadas v. MCI Systemhouse Corp., 255 F.3d 359, 362 (7th Cir. 2001).
2656 We need not be nearly so loose in our standards as that quote, but we
2657 should consider evidence that the expert acknowledges fall short of the 95
2658 percent confidence level, but not too far, and that the expert explains as
2659 statistically significant. We find questions about the accuracy of the data Dr.
2660 Orey used for his analysis to be legitimate but not dispositive.
2661 To respond to Dr. Orey’s analysis, the Defendants presented a
2662 recently released March 2024 BISG study from the Brennan Center for
2663 Justice at NYU Law School, entitled “Growing Racial Disparities in Voter
2664 Turnout, 2008–2022.” Trial Tr. 1272:10–15. No party had been aware of
2665 the study when the eight-day trial began, and it was introduced only for
2666 identification. Trial Tr. 1282:16–17, 1283:12–15. In fact, the study states it
2667 was published on March 2, 2024, the Saturday at the end of the first week of
2668 trial.
2669 The study showed a narrow gap in voter turnout between black and
2670 white Mississippians. Most importantly, the study found that in 2020 there
2671 was a slightly higher-percentage turnout among blacks than among whites.
2672 Trial Tr. 1286:13–19. Dr. Brunell explained that the premise of the study was
2673 to show that the voter-turnout gap had widened post-Shelby County,
2674 particularly in states previously covered by Section 5. Trial Tr. 1285:1–9.
2675 The study found that the voter-turnout gap reversed only in Mississippi, with
2676 blacks turning out in a higher percentage than whites in 2020 and slightly
2677 higher in 2022. Trial Tr. 1286:21–1287:6.
2678 The Plaintiffs objected to the survey, claiming that it was not disclosed
2679 by the expert-designation deadline and was not sufficiently reliable under

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2680 Federal Rule of Evidence 702. We took those objections under advisement
2681 and now overrule them. Starting with the disclosure, we consider the missed
2682 deadline under the standard set forth in Hamburger v. State Farm Mutual
2683 Automobile Insurance, 361 F.3d 875, 883 (5th Cir. 2004). Under that standard,
2684 good cause existed for the late disclosure because the survey was first
2685 published after the expert-disclosure deadline and just four days before the
2686 Defendants offered it. The Defendants also provided a copy to the Plaintiffs
2687 once they discovered the survey and before mentioning it in court. Any
2688 prejudice caused by the late disclosure was addressed when the court
2689 recessed the case to allow the Plaintiffs to depose Dr. Brunell about the
2690 report. That approach also eliminated the need for a longer continuance.
2691 Although the importance of the testimony is minimal, this factor does not
2692 outweigh the others, which favor admission.
2693 As for Rule 702, Dr. Brunell testified that the Brennan Center is a
2694 respected institution and that surveys like this are the kind he would rely on
2695 in his normal work. Trial Tr. 1277:11–25. “As a general rule, questions
2696 relating to the bases and sources of an expert’s opinion affect the weight to
2697 be assigned that opinion rather than its admissibility and should be left for the
2698 jury’s consideration.” United States v. 14.38 Acres of Land, More or Less
2699 Situated in Leflore County, 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo
2700 v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987)). We find that Dr.
2701 Brunell’s testimony regarding the Brennan Center survey was admissible,
2702 and the reliability of the survey is a question of weight.
2703 We accept that survey into evidence. Nonetheless, the parties had
2704 almost no time to explore the details of the survey nor to consider through
2705 their own experts its possible flaws. As we understand the survey report, it
2706 was not peer reviewed. Trial Tr. 1387:23–1388:7. Dr. Brunell stated he had
2707 not previously heard of its authors, though we do not know the significance
2708 of such lack of fame. Trial Tr. 1388:11–20. We accept that the Brennan

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2709 Center is a respected institution and that its reports are not amateurish.
2710 Nonetheless, we know too little about this particular report to have it
2711 outweigh other evidence in the case.
2712 The Defendants submitted evidence from the U.S. Census Bureau
2713 and the U.S. Department of Labor’s Current Population Survey (“CPS”).
2714 The Defendants emphasize the Supreme Court’s explicit reliance on CPS
2715 data in Shelby County as evidence of its trustworthiness. The Court held that
2716 conditions that once supported requiring only some states but not others to
2717 preclear all changes to voting practices with the Department of Justice no
2718 longer existed. See Shelby County, 570 U.S. at 554. Starting with the adoption
2719 of the Voting Rights Act in 1965, “Census Bureau data indicate that African–
2720 American voter turnout has come to exceed white voter turnout in five of the
2721 six States originally covered by [Section] 5.” Id. at 535. As the Court
2722 mentioned, a chart using the CPS data was placed in both the Senate and
2723 House reports on the bill that reauthorized the Voting Rights Act in 2006 and
2724 was also reproduced in the opinion. Id. at 548 (citing S. REP. NO. 109–295,
2725 at 11 (2006); H.R. REP. NO. 109–478, at 12 (2006)).
2726 The relevant part of the CPS survey is conducted every two years.
2727 Voters are asked questions about the election, specifically whether they
2728 voted. The CPS shows insignificant differences between black and white
2729 turnout either among registered voters or among the voting-age population
2730 in Mississippi. Trial Tr. 560:19–562:11. Dr. Orey disagreed, testifying that
2731 black turnout remains lower than white turnout. Dr. Orey’s criticism of the
2732 CPS survey focuses on how the data is collected. He testified that “the
2733 literature shows that African-Americans are more likely to overreport”
2734 voting “because of racial identity” and a sense that “what happens to other
2735 Blacks impacts one’s individual life,” which leads to increased pressure to
2736 over-report. Trial Tr. 531:15–23.

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2737 While Dr. Orey raises facially plausible problems with CPS data, we
2738 are not necessarily persuaded by this testimony. We acknowledge the
2739 Supreme Court’s Shelby County opinions contain no discussion of arguments
2740 that the CPS data is unreliable. If the argument was not raised, there was no
2741 need for the Court to consider possible inaccuracies. The Supreme Court
2742 found the data sufficient to discuss, but it is unnecessary to resolve any
2743 potential statistical issue to decide this case. Dr. Orey’s arguments are
2744 reasonable, but we find the evidence supports, at the very least, that whatever
2745 gap existed in the turnout in Mississippi in 1965 is greatly reduced today.
2746 In addition to his analysis of voter turnout by race, Dr. Orey also
2747 conducted a regression analysis to examine the extent to which black turnout
2748 in Mississippi was in fact driven by the socioeconomic markers discussed
2749 previously. PTX-008, 26–27. Dr. Orey used “data from the voter file” and
2750 “aggregated the data” along with “census data at the [bloc] level” and, in
2751 doing so, he was “able to examine whether or not the turnout amongst Blacks
2752 was a function of some of these indicators.” Trial Tr. 544:12–546:23.
2753 This factor required us to consider the extent past discrimination
2754 affected black voters’ ability to participate in Mississippi’s political process
2755 today. Teague, 92 F.3d at 292. We credit Dr. Orey’s conclusion that voting
2756 and political participation is influenced by financial resources, education,
2757 income, and unemployment. We find that black Mississippians are worse off
2758 than white voters in terms of these factors. The percentage of black voters
2759 who live below the poverty line is more than twice that of white voters, and
2760 they are less likely to graduate high school and college where they would have
2761 access to the required education needed to navigate the political process.
2762 Irrespective of the size or even existence of turnout discrepancies, we
2763 find that the record establishes black Mississippians’ ability to participate
2764 effectively in Mississippi politics is hindered by racial gaps in education

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2765 access, financial status, and health. Senate Factor 5 thus weighs in favor of
2766 the Plaintiffs.
2767 d. Senate Factor 6
2768 This factor considers the use of “overt or subtle racial appeals” in
2769 political campaigns. Gingles, 478 U.S. at 37. The Plaintiffs’ evidence
2770 identified other elections, but we will discuss only those elections the
2771 Plaintiffs identified in their proposed findings of fact regarding this factor.
2772 In a Republican primary contest, one candidate’s 30-second video
2773 advertisement briefly showed the candidate speaking on a stage next to a
2774 furled Confederate flag. That was an isolated incident, but we accept it was
2775 seeking white-voter support.
2776 In a general election between a white Republican senator and a black
2777 challenger, the state Republican Party issued a campaign flyer focusing on the
2778 fact that the Democratic candidate “was forced to resign after being indicted
2779 in Washington, D.C. as U.S. Agriculture Secretary.” The flyer did not
2780 acknowledge that he had been acquitted following a trial. Though perhaps
2781 unfair, a political party’s highlighting that the other party’s candidate was
2782 indicted for a crime, regardless of the candidate’s race and even if there had
2783 been an acquittal or no trial as of yet, is neither surprising nor a racial appeal.
2784 Two other examples in evidence are of a white congressional
2785 candidate in 1982 and a white supreme court candidate in 2004 who each
2786 identified himself as “one of us” when running against a black man. Another
2787 three-judge district court categorized the congressional candidate’s slogan as
2788 a racial appeal. See Jordan, 604 F. Supp. at 813 & n.8. Similarly appealing to
2789 white voters, a sitting state representative in 2015 urged “voters to vote
2790 against a ballot initiative because, if it passed, it would allow a Black judge to
2791 decide what happens with public schools.” Trial Tr. 781:14–19.

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2792 The Plaintiffs also introduced evidence of how some black candidates
2793 were exposed to the racial animosities of some voters. That evidence did not
2794 reveal official discrimination under Senate Factor 1, nor racial appeals by
2795 opposing candidates under Senate Factor 6. Nonetheless, if white voters are
2796 insulting or even threatening black candidates, that is relevant to
2797 understanding the totality of the circumstances. Because a consideration of
2798 this evidence is supported by the Supreme Court’s observation in Gingles
2799 that the “list of typical factors is neither comprehensive nor exclusive,” see
2800 Gingles, 478 U.S. at 45 (citing S. REP. NO. 97-417, at 29–30), we conclude
2801 that, if there have been threats to black candidates because of their race, it is
2802 a relevant consideration.
2803 One relevant witness on this additional consideration was Pamela
2804 Hamner. She was questioned about her campaign in DeSoto County, having
2805 been a candidate both in 2021 for the Board of Aldermen and in 2023 for the
2806 state senate.
2807 Q. I know you mentioned earlier that you campaigned in
2808 Horn Lake, did you campaign in Hernando?
2809 A. No -- very little. Hernando, I -- so when I ran in ’21 I had
2810 the police called on me, and people in my party, some of the
2811 men, they told me don’t go out by myself, which I’m glad I
2812 didn’t, so I didn’t spend a lot of time in Hernando, I -- and my
2813 canvassers had the police called on them this time too.
2814 Trial Tr. 720:15–22.
2815 Hamner described Hernando as “the county seat [that is] an older
2816 historic area, too, but it’s . . . more rural and it’s more White. . . . Hernando
2817 is predominantly White.” Trial Tr. 719:10–19. Hamner’s trial testimony
2818 implies she and her party members were treated this way because she was a
2819 black candidate campaigning in a predominantly white area.

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2820 Another witness was Terry Rogers. At age 18, he ran for the statewide
2821 office of Agriculture Commissioner in 2023. He testified that while
2822 campaigning at a county fair that is the state’s largest political forum, he saw
2823 Confederate flags. While he was giving a speech there, someone in the
2824 audience held up a cell phone so that Rogers could see a picture of a dog with
2825 a noose around its neck.
2826 The evidence supports that some candidates continue to make racial
2827 appeals. We find that Senate Factor 6 weighs in favor of the Plaintiffs. Other
2828 candidates occasionally encounter offensive or threatening actions by voters
2829 due to their race. We also find that the limited evidence of such conduct to
2830 add slight weight in favor of the Plaintiffs.
2831 e. Senate Factor 7
2832 This factor considers “the extent to which members of the minority
2833 group have been elected to public office in the jurisdiction.” Gingles, 478
2834 U.S. at 37. Senate Factor 7 is a particularly important factor in the totality-
2835 of-the-circumstances analysis. The success of black candidates is far from
2836 negligible. As stated by Plaintiffs’ expert Dr. Orey, Mississippi is among the
2837 states with the highest number of black elected officials.
2838 The evidence shows, though, that in order for black-preferred
2839 candidates to be elected for the legislature or for Congress, they almost
2840 always have to be running in majority-black districts. The evidence further
2841 showed there has not been a black candidate elected to statewide office since
2842 the end of Reconstruction 150 years ago. In recent elections, the Democratic
2843 Party has had some black nominees for statewide office, including for the
2844 United States Senate and Governor, but all have been defeated.
2845 Because a black-majority district is a virtual prerequisite for black
2846 candidates’ success in Mississippi politics, it is relevant that the Mississippi
2847 Legislature left the number of majority-black districts unchanged following

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2848 the recent Census, despite substantial increases in the black population and
2849 corresponding losses in the white population. There was testimony that the
2850 number of black legislators today is disproportionate to their percentage of
2851 the state’s population. We do not overlook that the Voting Rights Act states
2852 “[t]hat nothing in this section establishes a right to have members of a
2853 protected class elected in numbers equal to their proportion in the
2854 population.” 52 U.S.C. § 10301(b). Indeed, the Supreme Court concluded
2855 in its recent decision regarding Alabama congressional districts that
2856 proportional representation can rarely be achieved because of diffusion of the
2857 relevant population. Milligan, 599 U.S. at 28–29. Nonetheless,
2858 proportionality “is a relevant fact in the totality of the circumstances to be
2859 analyzed when determining whether members of a minority group have ‘less
2860 opportunity . . . to participate in the political process.’” De Grandy, 512 U.S.
2861 at 1000 (citation omitted). The Court later restated that relevance in relation
2862 to majority-minority districts: “Another relevant consideration is whether
2863 the number of [black-majority] districts . . . is roughly proportional to [the
2864 black] population in the relevant area.” LULAC v. Perry, 548 U.S. at 426.
2865 Balancing the substantial success for black-preferred candidates with
2866 its currently unbreachable limits, we conclude this factor, if not neutral,
2867 slightly favors the Plaintiffs.
2868 f. Senate Factor 8
2869 This factor considers whether “elected officials are unresponsive to
2870 the [minority’s] particularized needs.” Gingles, 478 U.S. at 45. The
2871 Plaintiffs seek to show a lack of responsiveness on the part of the white
2872 Republican Mississippi Legislature with evidence of such matters as a failure
2873 to expand Medicaid, not adequately funding education, and the decision to
2874 enact the legislative-redistricting plan being challenged in this case.

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2875 We find, based on testimony, that Medicaid expansion is important to

2876 the black community. Trial Tr. 701:12–24, 726:14–727:2. The unrebutted
2877 testimony is that the failure to expand Medicaid disproportionately harms
2878 black communities, particularly those in the Mississippi Delta where regional
2879 hospitals are in financial struggles. Trial Tr. 519:4–15. Dr. Orey testified that
2880 black Mississippians “will more likely depend on Medicaid relative to
2881 whites” and face “vast differences” in health coverage. Trial Tr. 518:4–19.
2882 Regarding education funding, the Plaintiffs provided two expert
2883 opinions, and we find both credible. Dr. Orey and Dr. Luckett concluded
2884 that Mississippi’s successes with respect to education have been unevenly
2885 distributed, with predominantly black schools being underfunded and
2886 underperforming as compared to predominantly white schools. PTX-008,
2887 8–12; PTX-007, 48–50.
2888 Other witnesses, such as Dr. Joseph Wesley, Deacon Kenneth Harris,
2889 and Terry Rogers, testified that white legislators do not campaign in black
2890 communities or attend events hosted by black civic organizations. Dr.
2891 Wesley testified that, during his role as Political Action Chair for the Forrest
2892 County Branch of the NAACP, the Branch has held numerous community
2893 forums — including for statewide candidates — open to all candidates, and
2894 yet his elected senator has never attended or otherwise engaged with the
2895 black community in the district. Finally, Pamela Hamner testified that her
2896 senator was not responsive to the needs and concerns of black voters in her
2897 area. The testimony of these witnesses was unrebutted, and we credit it.
2898 We mention that funding is a component of the decision that the
2899 Plaintiffs say should be made. Funding based on a set budget is a zero-sum
2900 calculation. Whether there is money for full funding of education and to
2901 expand Medicaid, even though Medicaid expansion has significant federal
2902 contribution, and also pay for the other significant work authorized by the

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2903 Mississippi Legislature is not for this court to decide. We mention as well
2904 that the Defendants did not offer any testimony that could have added
2905 context for the decisions.
2906 Under this factor, we analyze whether there are circumstances in
2907 which Mississippi has failed to respond to the needs of black voters. Teague,
2908 92 F.3d at 292. The Defendants are quite correct that the state government
2909 is not running roughshod over the interests of those in the minority.
2910 Although both chambers of the Mississippi Legislature are controlled by
2911 Republicans, a significant number of Democrats chair committees in both
2912 chambers, having been appointed by Republican leadership. Doc [199], 17–
2913 18. Even its redistricting decision served the minority’s interests when the
2914 majority agreed to unpair two incumbent Democrats such that the new plan
2915 would not require them to run against each other.
2916 In sum, the Plaintiffs’ examples of a lack of responsiveness include
2917 shortfalls in funding for education and the failure to expand Medicaid, the
2918 redistricting plan itself, and the failure of some white legislators to participate
2919 in black-community events. We find Senate Factor 8 favors the Plaintiffs.
2920 g. Senate Factor 9
2921 This factor considers “whether the policy underlying the state or
2922 political subdivision’s use of such voting qualification, prerequisite to voting,
2923 or standard, practice or procedure is tenuous.” Gingles, 478 U.S. at 37. This
2924 factor requires a consideration of the policies used by Mississippi to justify
2925 its districting decisions in this case. Teague, 92 F.3d at 292. The Plaintiffs
2926 do not contest that the legislature followed its policy of creating districts that
2927 were sufficiently equal in population for each chamber and consisted of
2928 contiguous tracts. The legislature’s policies also require that the districts
2929 comply with all state and federal laws relating to redistricting, that the

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2930 districts be compact and minimize county and precinct splits, and that the
2931 design of the districts consider “political performance.”
2932 The Defendants described the basic criteria the Standing Joint
2933 Committee was required to follow to avoid unconstitutional race-based
2934 redistricting and to retain the cores of the existing districts: One Person, One
2935 Vote; contiguity of the districts; and compliance with all state and federal
2936 laws. JTX-010, 8–14. Those are legitimate, non-tenuous policies, but how
2937 they were applied needs to be explained. We accept that some limited packing
2938 or cracking of minority populations in order to protect a white incumbent is
2939 a non-tenuous reason. All we have in that regard are quite general
2940 pronouncements made by the chair of the committee in each chamber when
2941 explaining the relevant plan that assisting incumbents was a factor. There is
2942 no evidence of when such considerations led to the creation of a particular
2943 district and resulted in the failure to create a black-majority district in that
2944 same area. We needed more than generalized statements for this defense in
2945 light of the Plaintiffs’ evidence of a Section 2 violation.
2946 We find the legislature did not enact an egregiously flawed plan, the
2947 equivalent of a political gerrymander of squeezing the minority into as few
2948 districts as possible. Yet, we do not find any specific, non-tenuous
2949 justifications for why black-majority districts were not created in the three
2950 identified areas. We find, therefore, that this factor weighs in favor of the
2951 Plaintiffs.
2952 h. Summary of the Senate Factors
2953 We have detailed the law, evidence and our findings on all the Senate
2954 Factors except for the inapplicable Senate Factor 4. We found all clearly to
2955 favor the Plaintiffs with two exceptions. One exception was Senate Factor 6,
2956 concerning overt or subtle racial appeals election campaigns. We found it
2957 only slightly favors the Plaintiffs. We also found that Senate Factor 7, which

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2958 considers the success of minority candidates in elections, either is neutral or

2959 only slightly favors the Plaintiffs.
2960 Senate Factors 2 (racially polarized voting) and 7 are considered “the
2961 most important” factors in a totality-of-the-circumstances analysis. Gingles,
2962 478 U.S. at 48 n.15. One of these most important factors clearly favors the
2963 Plaintiffs, while the other is perhaps almost neutral. As indicated, though, all
2964 other factors in the totality of circumstances clearly favor the Plaintiffs.
2965 After engaging in the required “intense[] local appraisal” and
2966 “searching practical evaluation of the past and present reality” of
2967 Mississippi’s political process, see Gingles, 478 U.S. at 79 (quotation marks
2968 and citation omitted), we conclude this is not one of the “only very unusual
2969 case[s]” where the Gingles preconditions are established, but there is no
2970 liability. Teague, 92 F.3d at 293 (quoting Clark, 21 F.3d at 97). The Plaintiffs
2971 instead met their burden under both the Gingles preconditions and the
2972 totality of the circumstances. We therefore find Mississippi’s 2022 Enacted
2973 Plans violate Section 2 of the Voting Rights Act.
2974 V. REMEDY
2975 We have concluded that the Plaintiffs met their burden under the
2976 Gingles framework to establish that Mississippi’s 2022 Enacted Plans violate
2977 Section 2 of the Voting Rights Act. The task now is to establish a remedy.
2978 Once a Section 2 violation is found, the court faces “the difficult
2979 question of the proper remedial devices which federal courts should utilize in
2980 state legislative apportionment cases.” Reynolds v. Sims, 377 U.S. 533, 585
2981 (1964) (Fourteenth Amendment case). One thing is clear though: the court’s
2982 “first and foremost obligation” must be “to correct the Section 2 violation.”
2983 United States v. Brown, 561 F.3d 420, 435 (5th Cir. 2009) (citation omitted).
2984 “In doing so, the district court ‘should exercise its traditional equitable

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2985 powers to fashion the relief so that it completely remedies the prior dilution
2986 of minority voting strength.’” Id. (quoting S. REP. NO. 97-417, at 31).
2987 Addressing similar equities in the equal-protection context, the
2988 Supreme Court has noted that courts must “tak[e] account of what is
2989 necessary, what is fair, and what is workable.” North Carolina v. Covington,
2990 581 U.S. 486, 488 (2017) (per curiam) (quoting Reynolds, 377 U.S. at 585).
2991 Though neither Covington nor Reynolds are Section 2 cases, the Fifth Circuit
2992 has relied on Reynolds and other equal-protection cases when discussing
2993 Voting Rights Act remedies. See Veasey v. Abbott, 830 F.3d 216, 270 (5th Cir.
2994 2016). The Fifth Circuit also holds that “any remedy ‘should be sufficiently
2995 tailored to the circumstances giving rise to the Section 2 violation,’ . . . and
2996 to the extent possible, courts should respect a legislature’s policy objectives
2997 when crafting a remedy.” Id. at 269 (quoting Brown, 561 F.3d at 435) (other
2998 citations omitted).
2999 While the proper remedy depends on the specific circumstances of
3000 each case, “it would be the unusual case in which a court would be justified
3001 in not taking appropriate action to [e]nsure that no further elections are
3002 conducted under the invalid plan.” Reynolds, 377 U.S. at 585; see also Veasey,
3003 830 F.3d at 270 (applying Reynolds under Section 2). That is particularly true
3004 when elections are imminent, but here the next legislative election would not
3005 happen until 2027. Therefore, the question is whether to order a special
3006 election to remedy the Section 2 violation found.
3007 The Defendants urge us not to order any special elections, relying on
3008 the equitable considerations found in Covington: “[1] the severity and nature
3009 of the particular . . . violation, [2] the extent of the likely disruption to the
3010 ordinary processes of governance if early elections are imposed, and [3] the
3011 need to act with proper judicial restraint when intruding on state
3012 sovereignty.” Def. Findings ¶ 421 (quoting Covington, 581 U.S. at 488). We

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3013 accept the Defendants’ invitation to use this test and find that these same
3014 equities are relevant under Section 2.
3015 Starting with the first consideration, the Defendants argue the
3016 violations are not severe because the Plaintiffs “have not proved any
3017 violation.” Def. Findings ¶ 422. We disagree with the premise of this
3018 argument — that there are no violations — and the Defendants give us
3019 nothing further in deciding how to determine severity. Even so, the severity
3020 here is greater than in Covington. There, the Supreme Court unanimously
3021 vacated a district-court decision that ordered special elections in 28 North
3022 Carolina legislative districts in 2017 that would allow the winners to serve
3023 only one year until the next regular legislative elections. Covington, 581 U.S.
3024 at 487. The Supreme Court concluded that the district court had given only
3025 cursory consideration to the balance of equities before ordering the elections.
3026 Id. at 488–89.
3027 The violations in Covington were more numerous than those proved
3028 here, but the length of the remaining Mississippi terms is three times as long.
3029 The legislators elected under the Enacted Plans have served, at this point, a
3030 little more than six months of their four-year terms. Thus, if left as is, black
3031 voters in each affected district will be served for a full term by a legislator
3032 chosen in an election that diluted black votes. The harm is localized, but it is
3033 severe to the affected voters. This is the exact kind of injury that warrants a
3034 remedy.
3035 The extent of any likely disruption to the ordinary governmental
3036 processes is the next factor to consider. In Section 2 litigation, requiring a
3037 special session of a legislature to redraw district lines is a common remedy.
3038 See, e.g., Robinson, 86 F.4th at 600–01. Nonetheless, such special sessions
3039 are a disruption of the ordinary legislative process and should be ordered only
3040 if it is equitable to do so.

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3041 One equitable consideration in deciding the proper timing of a remedy

3042 is whether the Plaintiffs acted quickly to assert their rights. By the end of
3043 March 2022, Mississippi approved redistricting plans for both houses of the
3044 legislature. The Plaintiffs did not sue until December 20, 2022. As they
3045 state, however, other Section 2 cases were stayed during this period while the
3046 Supreme Court considered Milligan. See Nairne v. Ardoin, No. CV 22-178-
3047 SDD-SDJ, 2022 WL 3756195, at *1 (M.D. La. Aug. 30, 2022) (staying
3048 proceedings until June 2023). Further, despite some initial delay in
3049 challenging the Enacted Plans, the Plaintiffs sought an expedited pretrial
3050 schedule — which the Defendants opposed — and required no extensions
3051 under that schedule. We find that any initial delays are insufficient to make
3052 a special election inequitable, nor would they justify not having a special
3053 session, which would be unfortunate but likely limited in time.
3054 The final factor is that the court must exercise restraint before
3055 intruding onto state sovereignty. In addition to our finding violations, we also
3056 find that allowing the violations to go unaddressed for the entire four-year
3057 term of affected legislators, when only a little more than six months have been
3058 served at this date, is not an equitable result. We therefore need to order
3059 some redistricting to rectify the Section 2 violations.
3060 In doing so, we know that “reapportionment is primarily the duty and
3061 responsibility of the State through its legislature or other body, rather than of
3062 a federal court.” Voinovich v. Quilter, 507 U.S. 146, 156 (1993) (citations
3063 omitted). Thus, “in redistricting cases, district courts must offer governing
3064 bodies the first pass at devising a remedy.” Brown, 561 F.3d at 435 (citation
3065 omitted).
3066 We will do that here with this guidance. Three of the illustrative
3067 districts satisfy all three Gingles preconditions: Illustrative Senate Districts 2
3068 and 9 and Illustrative House District 22. Our determination that these

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Mississippi NAACP v. State Board of Election Commissioners

3069 specific illustrative districts support a Section 2 violation does not require the
3070 State to draw districts as proposed in the Plaintiffs’ remedial plans. See Vera,
3071 517 U.S. at 978. The State has discretion in determining how best to remove
3072 the violation, subject to further judicial review. See id. The Plaintiffs’
3073 proposed remedy is to require districts be drawn “in which Black voters have
3074 an opportunity to elect candidates of their choice in the areas in and around”
3075 the relevant illustrative districts. Pls.’ Proposed Findings ¶ 781. We agree
3076 that would satisfy the State’s obligations, but the State has discretion on how
3077 to proceed with the remedy.
3078 Because we have concluded that only three of the illustrative districts
3079 identified by the Plaintiffs satisfy the three Gingles preconditions, there is no
3080 obligation to redraw districts in the areas of the other four illustrative
3081 districts. If the Mississippi Legislature creates three new majority-minority
3082 districts, however, there will likely be a need to revise other districts to make
3083 that possible. We find that the equitable factors identified in Covington allow
3084 the State to limit the ripple effect of creating new majority-minority districts
3085 as much as reasonably possible. Special elections will need to be called for all
3086 revised districts, and minimizing the number of legislative seats subject to
3087 election for a briefer-than-usual term is a significant State interest.
3088 So, how much time is needed for a special election? As mentioned
3089 before, we are to “afford a reasonable opportunity for the legislature” to
3090 create and adopt its own constitutional plan. Wise v. Lipscomb, 437 U.S. 535,
3091 540 (1978). Because we will require elections for any districts the Mississippi
3092 Legislature alters in response to this court’s ruling, relevant dates are these:
3093 (1) for the Mississippi Legislature to adopt new maps; (2) for this court to be
3094 presented either with objections to new maps drawn by the Mississippi
3095 Legislature or with maps proposed by the parties if the Mississippi
3096 Legislature does not act; and (3) for elections to be held.

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Mississippi NAACP v. State Board of Election Commissioners

3097 After trial, we asked the parties to submit their arguments about the
3098 necessary timing of new elections for some legislative districts if we found a
3099 need to order elections. We have found the need, but the parties’
3100 submissions are now outdated. It is the desire of this court to have new
3101 legislators elected before the 2025 legislative session convenes, but the
3102 parties can make whatever arguments about timing they conclude are valid.
3103 We state now that the parties should be prepared to present their own
3104 respective maps five days after the deadline for the Mississippi Legislature to
3105 adopt its own plan, thereby being able to present alternatives almost
3106 immediately should the Mississippi Legislature not act.
3107 In order for the court to receive the arguments of counsel on the issue
3108 of timing for the steps that must be taken, we will conduct a video
3109 conferencing hearing on Monday, July 8, at 2:00 p.m.; Tuesday, July 9, at
3110 2:00 p.m.; or Thursday, July 11, at 1:00 p.m. Counsel will be contacted by
3111 the court to determine the most appropriate date.
3112 It is SO ORDERED.

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