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Missouri State Conference of the National Association v. Ferguson-Florissant School District

United States District Court, E.D. Missouri, Eastern Division

August 22, 2016

MISSOURI STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs,
v.
FERGUSON-FLORISSANT SCHOOL DISTRICT, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          RODNEY W. SIPPEL UNITED STATES DISTRICT JUDGE.

         Plaintiffs Doris Bailey, Redditt Hudson, F. Willis Johnson, and the Missouri State Conference of the National Association for the Advancement of Colored People (“MO NAACP”) bring suit against Defendants Ferguson-Florissant School District (“FFSD” or “the District”) and the St. Louis County Board of Elections Commissioners (“St. Louis BOEC”) under § 2 of the Voting Rights Act of 1965, 52 U.S.C. § 10301. Plaintiffs contend that the electoral structures used in Ferguson-Florissant School Board (“the Board” or “FFSB”) elections interact with historical and socioeconomic conditions to deprive the African American voters in FFSD of an equal opportunity to elect representatives of their choice.

         Section 2 of the Voting Rights Act provides that no “standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 52 U.S.C.A. § 10301(a). A § 2 violation:

is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

52 U.S.C.A. § 10301(b).

         To establish a claim of vote dilution under § 2 of the Voting Rights Act, plaintiffs must first establish the following three “preconditions” pursuant to the United States Supreme Court’s decision in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986):

1. “[T]he minority group . . . is sufficiently large and geographically compact to constitute a majority in a single-member district, ”
2. “[T]he minority group . . . is politically cohesive, ” and
3. “[T]he white majority votes sufficiently as a bloc to enable it-in the absence of special circumstances . . . -usually to defeat the minority’s preferred candidate.”

Id. at 50-51.

         If all three preconditions are established, then a court must “consider the ‘totality of the circumstances’ and [] determine, based ‘upon a searching practical evaluation of the past and present reality, ’ whether the political process is equally open to minority voters.” Id. at 79 (internal citations and quotations omitted). “‘This determination is peculiarly dependent upon the facts of each case, ’ and requires ‘an intensely local appraisal of the design and impact’ of the contested electoral mechanisms.” Id. In undertaking this practical evaluation, courts look to the non-exhaustive list of “typical factors” identified in the Senate Report accompanying the 1982 amendments to the VRA (“Senate Factors”), see S. Rep. No. 97-417, at 28-29.

         I held a six day non-jury trial in this matter beginning on January 11, 2016. The parties filed post-trial briefs and proposed findings of fact and conclusions of law on April 8, 2016. On April 22, 2016, the parties filed responses to each other’s post-trial briefs. Also on April 22, 2016, the District filed a motion to re-open the case for additional evidence, in which it asks me to take judicial notice of the election results from the April 5, 2016 school board election in FFSD. On April 26, 2016, Plaintiffs responded to the District’s motion to re-open the case, stating that they do not oppose the motion, but requesting that I take judicial notice of additional facts related to the 2016 election.

         After consideration of the testimony given at trial, the exhibits introduced into evidence, the briefs of the parties, and the applicable law, I make the following findings of fact and conclusions of law. As discussed below, I conclude that Plaintiffs have established a § 2 violation.

         I. BACKGROUND

         A. Parties

         The individual Plaintiffs are U.S. citizens, registered voters, and African Americans who reside in areas of FFSD that could constitute single-member districts in which African Americans are a majority of the voting-age population. Joint Stip. ¶¶ 2-4.

         Plaintiff MO NAACP is a state affiliate of the NAACP. The NAACP is the nation’s oldest and largest civil rights organization. The mission of the NAACP is to ensure the political, educational, social, and economic equality of rights of all persons, to eliminate hatred and racial discrimination, and to remove all barriers of racial discrimination through democratic processes. Plaintiff MO NAACP is active in efforts to increase voter registration, education, and turnout, and emphasizes the importance of local elections, including local school board elections. Joint Stip. ¶¶ 5-6. The membership of the MO NAACP includes African Americans who reside, work, and raise families in the District and in areas of the District that could constitute single-member districts in which African Americans are a majority of the voting-age population. See PLTF-117, Hudson Decl., ¶¶ 1, 3-4; PLTF-119, Pruitt Decl., ¶ 4; Trial Tr. vol. 1, 20:23-21:2 (testimony of Adolphus Pruitt); Trial Tr. vol. 4, 86:6-8 (testimony of Redditt Hudson).

         Defendant FFSD is a governmental entity that maintains an electoral system based on at-large elections for seven positions on the FFSB. The Board is responsible for the governance and administration of FFSD, a political subdivision of the State of Missouri within the meaning of Article 4, Section 12, of the Missouri Constitution. Joint Stip. ¶ 7.

         Defendant St. Louis BOEC is the governmental entity charged with conducting elections in St. Louis County. It is responsible for conducting elections for positions on the Board in FFSD. Joint Stip. ¶ 8.

         FFSD is located in northern St. Louis County, Missouri (“North County”). The District was created by a 1975 desegregation order, which required the then-Ferguson-Florissant School District to annex the primarily African American neighboring school district of Kinloch and primarily white neighboring district of Berkeley. Joint Stip. ¶ 9; see also United States v. Missouri, 515 F.2d 1365, 1369-73 (8th Cir. 1975). The District covers all or part of eleven municipalities: Berkeley, Calverton Park, Cool Valley, and Kinloch in their entirety, and parts of Black Jack (one block), Ferguson, Florissant, Dellwood, Hazelwood, Normandy, and Old Jamestown. Joint Stip. ¶ 11. Its headquarters and administration center are in Florissant. Id. The City of Florissant comprises the largest portion of the District while the City of Ferguson comprises the second largest portion of the District. Joint Stip. ¶¶ 9, 11.

         B. Expert Witnesses

         The following witnesses provided expert testimony for Plaintiffs. William Cooper[1]testified as to “whether it is possible to create four majority-Black districts, ” and as to the historical and current demographics in the District. He also compiled population demographics as reported by the 2010 census. PLTF-44, Cooper Report, ¶9-10. Dr. Colin Gordon testified to Senate Factor 5. PLTF-40, Gordon Report.[2] Dr. David Kimball testified to Senate Factors Two, Three, Four, Five, Seven, Eight and Nine.[3] PLTF-48, Kimball Report, p. 14. Dr. Richard Engstrom testified to the existence of racially polarized voting. PLTF-50, Engstrom Report, ¶5.

         FFSD called one expert, Dr. Jonathan Rodden, to testify to all three Gingles preconditions. DEF-A, Rodden Report, p. 2. Rodden provided rebuttal reports to each of Plaintiffs’ four experts including the Gingles preconditions and Senate factors. See DEF-B in response to Engstrom’s Report, DEF-C in response to Cooper’s Report and DEF-D in response to Kimball and Gordon’s Reports.

         C. The FFSD Election System

         1.The FFSD election system at the time of trial

         The Board is composed of seven members who serve three-year terms and who are elected through an at-large election system. Board elections are staggered and held off-cycle so that either two or three Board seats are elected every April in accordance with Missouri law. Joint Stip. ¶31; RSMo. §§162.0261; 162.341; 162.291. When the number of candidates equals the number of Board seats to be filled, no election is held, and the candidates automatically assume responsibilities as members of the Board. Joint Stip. ¶ 32; RSMo. § 115.124.

         As of the date of trial in January 2016, the seven members of the Board were: Mr. Paul Morris, Mr. Robert Chabot, Mr. Brian Scott Ebert, Ms. Leslie Hogshead, Mr. Keith Brown, Dr. Donna Paulette-Thurman, and Dr. Courtney Graves. Dr. Paulette-Thurman and Dr. Graves are African American. The remaining five Board members were white. Joint Stip. ¶ 33.

         Each voter has the right to cast up to two votes in a two-seat election and up to three in a three-seat election, but cannot vote more than once for the same candidate in a single election. Joint Stip. ¶ 34. Board seats are awarded to the candidates with the most votes, such that when two seats are contested, the top two vote recipients win the two seats, and when three seats are contested, the top three vote recipients win the three seats. Joint Stip. ¶ 35.

         Voters can engage in bullet, or single-shot, voting. Bullet voting is casting just one vote for a single candidate and not using the remaining vote(s) on any other candidate. By engaging in bullet voting, voters increase the likelihood of electing his or her top-choice candidate. If every voter casts all of his or her votes in a two-seat election, i.e., voters do not engage in bullet voting, a candidate can receive at most 50% of all votes. If every voter casts all of his or her votes in a three-seat election, a candidate can receive at most 33.33% of all votes. Joint Stip. ¶ 34.

         The evidence before me indicates that bullet voting is not very common in FFSD. With the exception of Courtney Graves’s 2015 campaign, the witnesses who had been involved in campaigning in FFSD testified almost uniformly that they rarely, if ever, bullet vote or encourage others to do so, except when they are running for office and bullet vote for themselves. See Henson Testimony, Trial Tr. vol. 2, 19:7-13; Graves Testimony, Trial Tr. vol. 6, 26:2-4; Ebert Dep., June 16, 2015, 19:13-17; Paulette-Thurman Dep., June 17, 2015, 23:3-6; Brown Dep., June 16, 2015, 15:12-16; Hogshead Dep., July 1, 2015, 15:18-16:6; Paul Morris Dep., June 15, 2015, 69:11-20; Chabot Dep., July 2, 2015, 13:22-24; but see Schroeder Dep., July 2, 2015, 19:11-18 (has often voted for only one candidate). Other witnesses suggested that a measurable amount of bullet voting occurred in a small handful of contests. Kimball Testimony, Trial Tr. vol. 2, 180:5-11; Rodden Testimony, Trial Tr. vol. 5, 67:20-68:6, 203:24- 204:1; Graves Testimony, Trial Tr. vol. 6, 17:1-10; see also Morris Dep., 69:2-20 (stating that Graves “ran a bullet vote campaign”); see also Henson Testimony, Vol II, 18:20 - 19:6; Hogshead Dep., 15:18 - 16:6; Schroeder Dep., 19:4-18.

         2. The District’s motion to re-open the case for additional evidence

         After the trial, the District moved to re-open the case for additional evidence. See ECF [#181]. The District seeks to introduce the certified election results for the April 5, 2016, FFSD School Board election, which occurred after the close of evidence in this case.

         The certified election results for the April 5, 2016 FFSD School Board election are as follows. There were four candidates vying for the two Board seats available in the 2016 election. Connie Harge, an African American female, received the most votes, totaling 4, 572 votes, or 36.53% of the votes cast. Leslie Hogshead, a white incumbent female, received the second most votes, with 3, 513 votes, or 28.07% of the votes cast. Roger Hines, an African American male, came in third, with 2, 907 votes, or 23.23% of votes cast. Donna M. Dameron, a white female, came in fourth, with 1, 357 votes, or 10.84% of votes cast.

         The 2016 election resulted in the addition of one African American Board member. As a result, there are currently three African Americans on the seven-member Board.

         Plaintiffs do not oppose admission of the certified election results, and agree that I may take judicial notice of the certified election results. Plaintiffs request, however, that if Defendants’ motion to re-open the case for additional evidence is granted, I also take notice of the following facts for the sake of completeness: (1) the 2016 election included another African American candidate who lost; (2) a white incumbent chose not to run for re-election; and (3) the only incumbent who did run, Leslie Hogshead, who is white, won. Plaintiffs also argue that, in the absence of any meaningful expert testimony, the 2016 election results do not provide probative information about voting patterns, polarization among African American and white voters, or the overall success of African American-preferred candidates in FFSD.

         It is within a district court’s discretion to re-open a case to admit new evidence. Dent v Beazer Materials and Servs., Incl, 156 F.3d 523, 533 (4th Cir. 1998). When considering whether to admit new evidence, courts consider three factors: (1) whether the evidence sought to be introduced is especially important and probative; (2) whether the moving party’s explanation for failing to introduce the evidence earlier is bona fide; and (3) whether reopening will cause undue prejudice to the nonmoving party. Rivera-Flores v. Puerto Rico Tel. Co., 64 F.3d 742, 746 (1st Cir. 1995). Applying these standards, I find that re-opening the case to take judicial notice of the 2016 certified election results as well as the additional facts that Plaintiffs request is proper and I will take judicial notice of these facts. Id.; Fed.R.Evid. 201. However, as Plaintiffs argue, in the absence of meaningful expert testimony regarding these facts, I am unable to draw significant legal conclusions based on these facts.

         II. CENSUS DATA AND THE FFSD POPULATION

         A. Student Population

         Based on data provided to the U.S. Department of Education for the 2011 survey year, the District public schools serve 13, 234 students from preschool through 12th grade. 77.1% of the students are African American and 15.6% are white. Joint Stip. ¶ 12. The enrollment demographics of District schoolchildren are different from the population demographics of District residents at least in part because African American families and students rely more heavily on public education than do white families and students. Gordon Testimony, Trial Tr. vol. 1, 172:2-10; see also PLTF-41, Colin Gordon, Response to Report of Jonathan Rodden, June 30, 2015 (“Gordon Resp.”), ¶ 3, Fig. 1.

         B. Total Population and Voting-Age Population of the District

         One of the central issues raised in this case has been whether African Americans constitute a numerical majority of the voting-age population in the District and if so, whether a numerical majority status is a bar to relief under Gingles I. Resolving these questions raises another question: which datasets and methodologies are appropriate bases for determining the makeup of the FFSD voting-age population?

         Plaintiffs contend that the only appropriate method for determining the breakdown of the FFSD voting-age population is by using the 2010 Decennial Census, which reports that the “any-part Black”[4] (“AP Black”) voting-age population in FFSD is 24, 466, or 48.19% of the total voting-age population. Courts consider Decennial Census data “presumptively accurate.” See Valdespino v. Alamo Heights Indep. Sch. Dist., 168 F.3d 848, 853-54 (5th Cir. 1999). To show that there has been a substantial population shift rendering the actual count of the Decennial Census data inaccurate, the party challenging the use of the Census data must “thoroughly document[]” changed population figures with “a high degree of accuracy, ” a showing that must be “clear, cogent and convincing.” Perez v. Pasadena Indep. Sch. Dist., 958 F.Supp. 1196, 1210 (S.D. Tex. 1997) (citation omitted), aff’d, 165 F.3d 368 (5th Cir. 1999)

         The District contends that I should rely on the results of the 2011-2013 American Community Survey (“ACS”), which provides that the “single-race Black” voting-age population in FFSD is 24, 313 1, 513 (22, 800 to 25, 826), or 48.94% 3.05% (45.89% to 51.99%) of the total voting-age population. The District also argues that I should consider the estimates of its expert, Dr. Jonathan Rodden, which are based on the Decennial Census data, ACS data, and trend lines. Under these analyses, the District contends that the current any-part Black voting-age population in FFSD is 24, 994, or 51.0% of the total voting-age population.

         A summary of the demographic data and data sources offered by the parties is presented below:

Summary of FFSD Demographic Data Offered By Parties

Data Source

Total VAP

Black VAP

% Black VAP

2010 Decennial Census (Joint Stip. ¶ 13)

50, 771

Single-race Black: 24, 030 Any-part Black: 24, 466

Single-race Black: 47.33% Any-part Black: 48.19%

2011-2013 American Community Survey estimate (Joint Stip. ¶ 28; PLTF- 23; PLTF-29; PLTF-32 (ACS tables))

49, 679

Single-race Black: 24, 313 1, 513 (22, 800 to 25, 826) Any-part Black: No estimate

Single-race Black: 48.94% 3.05% (45.89% to 51.99%) Any-part Black: No estimate

Estimates by District’s expert Dr. Jonathan Rodden (Deft-FFSD C, Tbl. 1 (p. 3))

49, 009

Single-race Black: 24, 313 (no error margin provided) Any-part Black: 24, 994 (no error margin provided)

Single-race Black: 49.6% (no error margin provided) Any-part Black: 51.0% (no error margin provided)

         1. 2010 Decennial Census

         a) Total population according to the 2010 Decennial Census

         The U.S. Census Bureau measures the total population of each jurisdiction in the United States every ten years through the Decennial Census. According to the 2010 Decennial Census, the District has a total population of 68, 663, with an any-part Black population of 36, 967 (53.84%), and a white population of 29, 581 (43.08%). Joint Stip. ¶ 13.

         The boundaries of FFSD as recorded by the Census Bureau are slightly larger than the boundaries of FFSD as recorded by the St. Louis BOEC. For this reason, the most accurate way to count the population is by adding together the populations of the individual census blocks that comprise the District as recorded by the St. Louis BOEC. Calculating the FFSD population in this manner has a net effect of there being 387 fewer persons within the voting district than as recorded by the Census Bureau.[5] PLTF-44, Cooper Decl., ¶ 13.

         b) Voting-age population according to the 2010 Decennial Census

         The voting-age population (“VAP”) of a jurisdiction includes all individuals age 18 and over. See, e.g., Gordon Testimony, Trial Tr. vol. 1, 137:1-10. The 2010 Decennial Census is the most recent “complete count” of the VAP of a jurisdiction. PLTF-45, Cooper Suppl. Decl., July 2, 2015, ¶¶ 3, 6; see also Rodden Testimony, Trial Tr. vol. 5, 160:13-17.

         According to the 2010 Decennial Census, the total VAP in the District is 50, 771, of whom 24, 466 (48.19%) are any-part Black; 24, 030 (47.33%) are single-race Black; and 24, 852 (48.95%) are non-Hispanic single-race white. Joint Stip. ¶ 13. There are 1, 324 (1.93% of the total population) Latinos in the District, of whom 824 (1.62% of the VAP) are voting-aged. Joint Stip. ¶¶ 13, 16.

         In 2010, there were only 386 more Non-Hispanic white voters than AP Black voters in the District. Joint Stip. ¶14. Non-Hispanic white voters were not a majority in the District in 2010. Instead, they held a slight plurality of 0.76%. Joint Stip. ¶13. A plurality is the largest group of voters. Rodden Testimony, Vol. V, 19:2-3.

         2. The American Community Survey or “ACS” Data

         a) Characteristics of the American Community Survey

         In addition to the Decennial Census, the Census Bureau publishes one- and five-year estimates, and previously published three-year estimates, [6] of population demographics based on the American Community Survey. The ACS is a rolling sample survey based on responses from one in about forty persons on an annual basis. Joint Stip. ¶ 21; see also Cooper Testimony, Trial Tr. vol. 1, 202:13-203:4.

         “A Compass for Understanding and Using American Community Survey Data, ” issued by the United States Census Bureau, states, “The ACS is a nationwide, continuous survey designed to provide communities with reliable and timely demographic, housing, social and economic data every year.” PLTF-133, p.1. The Census Bureau specifically reports “age” and “race” in the ACS. Id. According to the Census Bureau, the three-year ACS data is available for populations greater than 20, 000. Id. at 3. It is more precise than the one-year ACS, more current than the five-year ACS, and it has a larger sample size than the one-year ACS. Id. The District’s population was 68, 663 according to the 2010 Decennial Census and 66, 758 according to the 2011 - 2013 ACS. Joint Stip. ¶16, ¶23.

         Because ACS population estimates are based on a sample, they are subject to sampling bias, i.e., error margins or confidence intervals. Joint Stip. ¶ 22; Gordon Testimony, Trial Tr. vol. 1, 135:9-21; Cooper Testimony, Trial Tr. vol. 1, 202:13-203:4; see also Joint Stip. ¶ 24, 2011-2013 3-Year ACS Table B01001: Sex by Age, FFSD; PLTF-41, Gordon Resp., at 1. All ACS population estimates are published with margins of error “based on a 90 percent confidence level.” PLTF-136, ACS Office, U.S. Census Bureau, American Community Survey Multiyear Accuracy of the Data, Sept. 24, 2014, at 11. This means that a reader can be 90 percent confident that the true value lies within the confidence interval provided by the ACS. See Engstrom Testimony, Trial Tr. vol. 4, 14:12-23. ACS error margins are larger for smaller sample sizes, smaller geographic units, and smaller demographic groups within geographic areas. See Gordon Testiomony, Trial Tr. vol. 1, 135:2-8, 174:19-175:20; Engstrom Testimony, Trial Tr. vol. 4, 71:1-72:6; Rodden Testimony, Trial Tr. vol. 5, 164:5-20.

         Statisticians routinely employ a rule of thumb that when the error margins of two population estimates overlap, there is no statistically significant difference between those two numbers. See Gordon Testimony, Trial Tr. vol. 1, 135:22-136:2 (Gordon testifying that “if you’re comparing two numbers and the confidence intervals overlap, then there’s no statistical significance between those two numbers. There’s no basis for claiming that one number is bigger than the other, because the supposed difference between the numbers is completely swallowed by the margin of error as reported by ACS”); Rodden Testimony, Trial Tr. vol. 5, 6:17-7:6.

         The Census Bureau cautions that ACS data are estimates and recommends that users turn to other Census products for population counts. It includes a similar warning on the top of every ACS population table it provides. See PLTF-132, U.S. Census Bureau, Comparing ACS Data, July 14, 2015 (“Use numbers from the 2010 Census to obtain counts of the population and their basic characteristics (sex, age, race, Hispanic origin, and homeowner status)”); Joint Stip. ¶ 24, 2011 - 2013 3-Year ACS Table B01001: Sex by Age, FFSD; see also Gordon Testimony, Trial Tr. vol. 1, 157:17-20 (“I would not draw conclusions about voting-age population based on the ACS because it’s not designed for that purpose, for a threshold of the population, and because the margins of error are too wide”), id. at 133:24-134:21; Cooper Testimony, Trial Tr. vol. 1 203:9-17.

         b) VAP demographics in FFSD as estimated by the ACS

         The 2011-2013 ACS estimates for Sex by Age by Veteran Status for the Civilian Population 18 Years and Over in FFSD are as follows:


Ferguson-Florissant School District, Missouri

African-American

Margin of Error ()

% of AA Total

White, Not Hispanic

Margin of Error ()

% of NHW Total

Total:

24, 313

1, 513

100.0%

23, 242

1, 413

100.0%

Veteran 2, 380 NC 9.8% 2, 728 NC 11.7%
Nonveteran 21, 933 NC 90.2% 20, 514 NC 88.3%
Male: 9, 582 946 39.4% 11, 033 870 47.5%
18 to 64 years: 8, 358 954 34.4% 8, 499 826 36.6%
Veteran 1, 371 377 5.6% 1, 051 272 4.5%
Nonveteran 6, 987 869 28.7% 7, 448 748 32.0%
65 years and over: 1, 224 291 5.0% 2, 534 363 10.9%
Veteran 755 261 3.1% 1, 593 262 6.9%
Nonveteran 469 190 1.9% 941 271 4.0%
Female: 14, 731 1, 029 60.6% 12, 209 808 52.5%
18 to 64 years: 12, 879 978 53.0% 8, 348 669 35.9%
Veteran 240 153 1.0% 66 49 0.3%
Nonveteran 12, 639 957 52.0% 8, 282 661 35.6%
65 years and over: 1, 852 367 7.6% 3, 861 534 16.6%
Veteran 14 23 0.1% 18 28 0.1%
Nonveteran 1, 838 370 7.6% 3, 843 535 16.5%

         Source: U.S. Census Bureau, 2011-2013 American Community Survey PLTF-44, Cooper Decl., at Ex. D, p. 29 of 46.

         According to the 2011-2013 three-year ACS, the VAP in the District is 49, 679. Joint Stip. ¶ 28. The 2011-2013 ACS estimates that the single-race white VAP (including Hispanic whites) is 23, 740, or 47.24% of the District’s VAP, and the non-Hispanic white VAP is 23, 242, or 46.78% of the District’s VAP. Joint Stip. ¶ 25. According to the 2011-2013 ACS, there are an estimated 1, 315 (1.97%) single-race individuals in FFSD who identify as neither Black nor white, 85 of whom identify as American Indian or Alaska Native; 544 of whom identify as Asian; and 686 of whom identify as “some other race.” See Joint Stip. ¶ 23 (table); PLTF-30, 2011-2013 3-Year ACS Table C02003: Detailed Race, FFSD; PLTF-41, Gordon Resp., at 2. The 2011-2013 ACS estimates that the FFSD single-race Black VAP is 24, 313, or 48.94% of the District’s VAP. Joint Stip. ¶ 25. The margin of error for the 2011-2013 ACS estimate for the single-race Black VAP is ±1, 513, meaning that the 2011-2013 ACS estimates that the single-race Black VAP could be as low as 22, 800 or as high as 25, 826. PLTF-44, Cooper Decl., at Ex. D, p. 29 of 46.

         Unlike the Decennial Census, the ACS does not publish estimates for the “AP Black” category or estimate the margin of error associated with the AP Black fraction of the VAP. Joint Stip. ¶¶ 25, 26; see also Gordon Testimony, Trial Tr. vol. 1, 136:5-12. As a result, the 2011- 2013 three-year ACS estimates do not establish to a degree of statistical significance that the single-race Black VAP has grown since the 2010 Census. Rodden Testimony, Trial Tr. vol. 5, 177:1-21.

         The 2010 Census totals for single-race Black VAP is 24, 030, which falls well within the margin of error for the 2011-2013 ACS estimate for the single-race Black VAP of 22, 800 to 25, 826. In other words, according to the 2011-2013 ACS estimate, the single-race Black VAP could be as small as 22, 800, which is less than the 2010 Census count.

         Comparing population sizes as estimated by the 2011-2013 ACS alone, the confidence intervals for the single-race Black VAP and the non-Hispanic white VAP overlap. The 2011- 2013 ACS survey estimates state with 90% certainty that the single-race BVAP is between 22, 800 and 25, 826 and that the single-race non-Hispanic white VAP is between 21, 829 and 24, 655. PLTF-44, Cooper Decl., at Ex. D, p. 29 of 46. Because these confidence intervals overlap, the 2011-2013 ACS estimates do not establish to a degree of statistical significance that the single-race Black VAP is greater than the non-Hispanic white VAP within FFSD. See PLTF-41, Gordon Resp., at 1-2; see Deft-FFSD C, Supplemental Report of Jonathan Rodden & Jowei Chen: Assessment of Plaintiffs’ Redistricting Proposals, July 2, 2015 (“Rodden Redistricting Rep.”), ¶ 7; see also generally Gordon Testimony, Trial Tr. vol. 1, 134:22-136:12.

         Additionally, the Black and white VAP estimates from the ACS are independent of one another. As a result, it is not appropriate to assume that any sampling bias in the two numbers “will work in the same direction.” Gordon Testimony, Trial Tr. Vol. 1, 175:15-20.

         3. The District’s population estimates

         a) Calculating an AP Black VAP figure from the 2011-2013 ACS estimates

         Although the 2011-2013 ACS estimates do not include an estimate of the AP Black VAP, the District’s expert, Dr. Jonathan Rodden, attempted to extrapolate that figure, which he estimated as 51.0% of the FFSD VAP. Deft-FFSD C, Rodden Redistricting Rep., Tbl. 1 (p. 3). Dr. Rodden came to this figure by dividing the number of individuals who identified as two or more races with no-part African American (632) by those who identified as two or more races with some-part African American (1, 564), to determine the ratio of individuals in the 2011-2013 ACS that identify as any-part African American. Then Dr. Rodden applied the same ratio for individuals that identify as any-part African American in the total population to the number of voting-age individuals identified in the 2011-2013 ACS.

         Dr. Rodden calculated that the total number of voters that identify as any-part Black was 24, 994, which according to Dr. Rodden is 51% of the District’s voters. Rodden Testimony, Vol. V, 15:23-16:16; DEF Ex. C, Table 1. However, Dr. Rodden did not use the total VAP of the FFSD as estimated by the 2011-2013 ACS, which leads him to inflate his calculation of the percentage of the VAP in FFSD that is Black. The 2011-2013 ACS estimates the total VAP for the District as 49, 679, see Joint Stip. ¶ 28, but because Dr. Rodden excludes persons reporting two or more races, he underreports the total VAP of the District as 49, 009. See Deft-FFSD C, Rodden Redistricting Rep., ¶¶ 5-6, Tbl. 1 (p. 3). When the correct denominator for the total VAP of the District is used (49, 679, as reported by the ACS), the single-race Black VAP is 48.9% (24, 313 / 49, 679) of the total VAP and the any-part Black VAP (as estimated by Dr. Rodden) should be 50.3% (24, 994 / 49, 679) of the total VAP. See id.; Joint Stip. ¶ 28.

         b) Demographic trends in the Ferguson-Florissant School District

         Dr. Rodden also created linear projections from the three-year ACS estimates to demonstrate a trend of steady growth in the African American population in FFSD since 2000. Rodden Report, DEF-A, Figure 3. To project this trend, Dr. Rodden plotted the average population estimates from the midpoint year of four sets of ACS three-year estimates, 2008- 2010, 2009-2011, 2010-2012, and 2011-2013, and extended that line into 2015. DEF-A, Rodden Rep., ¶¶ 12-13, Fig. 3 (p. 6); see also Rodden Testimony, Trial Tr. vol. 5, 160:2-7.

         Dr. Rodden attributes most of the difference in demographics to a decline in the white population. See DEF-A, Figure 3; Rodden Testimony, Trial Tr. vol. 5, 8:15-9:9. Plaintiffs’ expert Dr. Gordon corroborates that trend, stating, “Rodden and I agree substantially on the basic demographic trends. The district is in the midst of an ongoing racial transition marked by white flight to the outer suburbs. Since 2000, the white population of the Ferguson-Florissant School District (FFSD) has fallen by almost half (50, 000 to 28, 160) while the black population has grown steadily. And, there is a stark disparity in population by age, with the share of the African-American population much higher among school-age residents.” Gordon Rebuttal Report, PLTF-41, p. 1; Rodden Testimony, Trial Tr. vol. 5, 11:4-12.

         Dr. Rodden testified that trends in the voting-age population in the District mirror the District’s overall population trends. Rodden Testimony, Trial Tr. vol. 4, 213:18-23. Dr. Rodden testified that the trend is due in part to the demographic differences between African Americans and whites. The white population is considerably older than the African American population, as African American families tend to be younger. In the 2010 Decennial Census, there was a large number of African Americans on the cusp of turning 18, whereas there were far fewer in that category for whites. Rodden Testimony, Vol. IV, 214: 1-17. Dr. Gordon corroborates that finding in his report. Gordon Supplemental Report, PLTF-41, Figure 1: Enrollment in FFSD by Race, 1991-2014.

         Based on his trend analysis, Dr. Rodden concluded that African American voters, who were at near parity with white voters at the time of the 2010 Census, are now a majority of the District’s VAP. Rodden Testimony, Trial Tr. vol. 5, 8:3-13:17; Rodden Testimony, Trial Tr. vol. 4, 214:25-215:12; DEF-X, “Share of Voting-Age Population.

         4. Impediments to voting faced by African Americans in FFSD

         The population that can vote in any given election is a subset of the VAP because the VAP includes some individuals who are old enough to vote, but who cannot vote for some other reason. See, e.g., Gordon Testimony, Trial Tr. vol. 1, 136:23-141:13; PLTF-41, Gordon Resp., at 2. Impediments that may prevent or hinder particular groups from exercising their voting rights include felony disenfranchisement, the lack of homeownership, and other socioeconomic indicators that are barriers to registration.

         a) Felony disenfranchisement

         In Missouri, individuals who are part of the VAP but who are imprisoned, or who are on probation or parole as part of their sentence for commission of a felony, are not eligible to vote. Gordon Testimony, Trial Tr. vol. 1, 136:23-141:13; PLTF-41, Gordon Resp., at 2; see also RSMo. §§ 115.133, 115.195; 561.026; Mo. Const. art. 8, § 2. About one-third of the approximately 106, 000 Missourians who have lost the right to vote are serving a sentence in a state prison. Gordon Testimony, Trial Tr. vol. 1, 163:21-164:2. The remaining more than two- thirds, or 75, 000, are held in local jail, or have returned to their home communities on probation or parole. Id.

         In Missouri, the rate of felony disenfranchisement for the population as a whole is 2.32% of VAP. Gordon Testimony, Trial Tr. vol. 1, 139:10-17; PLTF-41, Gordon Resp., at 2. The rate of felony disenfranchisement for the African American population is almost triple the overall statewide rate, at 6.88%. Gordon Testimony, Trial Tr. vol. 1, 139:10-17; PLTF-41, Gordon Resp., at 2.

         Dr. Colin Gordon, a historian and tenured professor, testified on behalf of Plaintiffs on the effect of felony disenfranchisement in FFSD. Dr. Gordon is nationally recognized as an expert in urban history, specifically in the history of development, decline, residential patterns, and segregation in the St. Louis metropolitan area. See Trial Tr. vol. 1, 87:4-94:23; PLTF-40, Colin Gordon, Segregation and Uneven Development in Greater St. Louis, St. Louis County, and the Ferguson-Florissant School District, May 26, 2015 (“Gordon Rep.”), at 62 (Gordon CV); PLTF-42, Colin Gordon, Mapping Decline: St. Louis and the Fate of the American City (U. of Penn. Press 2008).

         Dr. Gordon testified that, although there is no reported data specific to FFSD showing felony disenfranchisement rates by race, one can reasonably conclude that, in FFSD, African Americans are disenfranchised due to a criminal conviction at higher rates than whites. See Gordon Testimony, Trial Tr. vol. 1, 138:3-4, 165:1-6. Dr. Gordon noted the large racial disparities statewide in felony disenfranchisement rates, and also noted that felony disenfranchisement rates are generally higher in urban areas than elsewhere. Trial Tr. vol. 1, 138:5-19. Based on these facts, and “given what we know about patterns of policing in North County in the wake of the Department of Justice report after Ferguson, ” Dr. Gordon opined that “an application of the [statewide] African-American rate [of disenfranchisement] to voting-eligible African Americans in Ferguson-Florissant would be a conservative estimate of the rate of disenfranchisement [among African Americans there].” Id.

         Although Dr. Gordon did not provide District-specific felony disenfranchisement testimony, I find Dr. Gordon’s testimony regarding the applicability of the statewide disenfranchisement rate to the District credible and I find that African Americans in FFSD are disproportionately affected by felony disenfranchisement as compared to non-Hispanic whites. However, because there are no prisons in the District, it would not be appropriate to conclude that the same percent of African Americans who are disenfranchised statewide applies equally to the District. Dr. Gordon testified that approximately one-third of the disenfranchised population is located in prisons. As a result, only two-thirds of Dr. Gordon’s estimated rate of 6.88% of African American felony disenfranchisement should be applied to the FFSD population, a rate of approximately 4.59%.

         b) Voter registration

         In Missouri, individuals who are part of the VAP but who fail to register by the operative election registration deadline-which is 27 days before a given election-cannot vote in that election. RSMo. §§ 115.135, 115.139; Mo. Const. art. 8, § 2; Marre v. Reed, 775 S.W.2d 951, 955-56 (Mo. banc 1989). Additionally, individuals who are part of the VAP and who are registered to vote, but who then move from one jurisdiction to another before an election registration deadline, cannot vote in that election unless they re-register at their new address before that deadline. See RSMo. §§ 115.275, 115.277, 115.135; Mo. Const. art. 8, § 2. Other restrictions may occur, for example, to individuals who are part of the VAP but who move within a jurisdiction. These individuals can change their address on Election Day, but only at their new polling place or the central polling location of the county, and not at their old polling place. RSMo. §§ 115.135.1-3, 115.165. Additionally, individuals who move from one jurisdiction to another after an election registration deadline cannot vote for local offices in that election. RSMo. §§ 115.275.4, 115.277.4.

         There is undisputed evidence from the Census Bureau that single-race African Americans in Missouri register to vote at a lower rate (67.1%) than non-Hispanic whites (72.2%). Kimball Testimony, Trial Tr. vol. 2, 119:14-18;[7] Trial Tr. vol. 3, 41:6-10 (same); see also PLTF-63, Reported Voting and Registration, by Sex, Race, and Hispanic Origin, for States (Nov. 2014) (Ex. 5 to Rodden Dep., Aug. 20, 2015), at 7; Rodden Testimony, Trial Tr. vol. 5, 71:1-4, 147:12-16.

         Plaintiffs, however, did not produce any statistical evidence showing the voter registration rates of African American and white voters within the District. Rodden Testimony, Trial Tr. vol. 5, 70:24-71:4; Kimball Testimony, Trial Tr. vol. 2, 185:6-9; Gordon Testimony, Trial Tr. vol. 1, 173:16-24. Because Plaintiffs did not provide any such evidence, the District argues that Plaintiffs have failed to meet their burden in establishing a statistically significant difference in voter registration rates in the District.

         Moreover, according to the District, the evidence shows that there is little to no difference in registration rates between African Americans and whites in FFSD. To support this argument, the District’s expert, Dr. Rodden, analyzed voter turnout in the District. Dr. Rodden examined voter turnout by race using two methods: Ecological Inference and scatterplots for the 2012-2015 elections. Rodden Report, DEF-A, Figure 5, 6. Based on these analyses, Dr. Rodden concluded that there was “not much of a relationship or any relationship here between turnout and African-American share, ” particularly in 2012, 2013, and 2014. Rodden Testimony, Trial Tr. vol. 5, 77:11-78:3. Rodden did note that there was evidence of a slight difference in turnout in 2011 and a significant difference in turnout in 2015. Id. at 77:18-78:3.

         Turnout, however, is different from registration. Dr. Rodden’s calculations of turnout merely measure turnout rates of already registered voters. Because Dr. Rodden did not first examine or determine voter registration rates by race, his conclusions regarding turnout merely suggest, at best, that turnout to the polls is substantially similar within the registered voter population. Rodden Testimony, Trial Tr. vol. 5, 146:23-25. As a result, Dr. Rodden’s analysis does not inform the inquiry into whether initial registration rates are as disparate in FFSD as they are throughout Missouri, nor does it overcome the Plaintiff’s evidence that some difference in registration rates exists.

         I find that there is sufficient evidence in the record to conclude that African Americans in FFSD are likely registered to vote at a lower rate than white residents. Neither party produced statistical evidence regarding the voter-registration gap in FFSD in particular. However, FFSD experiences substantial racial disparities along a range of socioeconomic factors. See, e.g., infra Section II.B.4(c). These disparities tend to correlate with lower registration rates, a proposition with which the District’s own expert concurred. See Rodden Testimony, Trial Tr. vol. 5, 117:14- 118:1. Additionally, there is no credible evidence to suggest that the statewide gap disappears in FFSD. As a result, it is reasonable to conclude that the statewide disparities in registration rates are similar to those in the District.

         Accordingly, based on the credible testimony of Plaintiffs’ experts regarding statewide disparities in registration rates and the existence of other racial disparities in FFSD that are likely to impact voter registration rates, I find that African Americans in FFSD register to vote at a rate lower than non-Hispanic whites.

         c) Homeownership

         Homeownership is a strong predictor of voting in local elections. Kimball Testimony, Trial Tr. vol. 2, 147:17-24. Dr. Gordon testified that individuals who do not own their homes experience residential instability and move more frequently than homeowners, which impacts the ability to efficiently and effectively register and vote. See Trial Tr. vol. 1, 173:7-14; 130:21-313:1; see also Hudson Testimony, Trial Tr. vol. 4, 90:10-91:11; supra at Section II.B.4(b).

         Within FFSD, African Americans own their homes at a significantly lower rate than whites. Gordon Testimony, Trial Tr. vol. 1, 173:7-11. In FFSD, the homeownership rate among African American residents is 50.7%, which is more than 30 percentage points lower than the homeownership rate among whites (82.8%). Id. at 174:7-9; 176:11-13; see also PLTF-45, Cooper Suppl. Decl., ¶ 17 (reporting that the FFSD African American homeownership rate as estimated by ACS has dropped from 61% to 50.7% since the 2005-2007 ACS).

         Based on the credible testimony of Plaintiffs’ experts, I find that the lower rate of homeownership among African Americans in FFSD, as compared to white residents, contributes to the depressed levels of voter registration in the African American community.

         DISCUSSION

         III.GINGLES I

         A. Gingles I Legal Standards

         To satisfy the requirements of the Gingles I precondition, Plaintiffs must show that African Americans in the District are “sufficiently large and geographically compact to constitute a majority in a single-member district.” Gingles, 478 U.S. at 50. This straightforward threshold requirement is satisfied by the creation of an illustrative plan containing a single- member district in which Black voters constitute a bare majority of the VAP. See Bartlett v. Strickland, 556 U.S. 1, 18 (2009) (stating that Gingles I asks a simple threshold question: whether the protected group of voters can make up “more than 50 percent of the voting-age population in the relevant geographic area?”). “[T]he Supreme Court [at this stage] requires only a simple majority of eligible voters in the single-member district. The court may consider, at the remedial stage, what type of remedy is possible . . . . But this difficulty should not impede the judge at the liability stage of the proceedings.” Bone Shirt v. Hazeltine, 461 F.3d 1011, 1019 (8th Cir. 2006) (“Bone Shirt II”) (alteration in original) (quoting Dickinson v. Ind. State Election Bd., 933 F.2d 497, 503 (7th Cir. 1991)).

         The plan must also (1) satisfy the one person, one vote constitutional requirements, i.e., approximate population equality across all districts in the plan, see Abrams v. Johnson, 521 U.S. 74, 98 (1997); and (2) be composed of geographically compact districts that comply with traditional redistricting principles, including: contiguity; minimizing the splits of counties, municipalities, and precincts; recognizing communities of interest; and avoiding multimember districts, see Id. at 92 (“[Section] 2 compactness inquiry should take into account ‘traditional districting principles such as maintaining communities of interest and traditional boundaries.’”) (citation omitted); Bone Shirt II, 461 F.3d at 1019, and state and county districting requirements, see Voinovich v. Quilter, 507 U.S. 146, 156 (1993) (in area of voting and apportionment, “federal courts are bound to respect the States’ . . . choices unless those choices contravene federal requirements”).

         B. Gingles I Findings of Fact

         Mr. William Cooper, Plaintiffs’ expert demographer, testified at trial. Since 1986, Mr. Cooper has prepared redistricting plans for approximately 700 jurisdictions. PLTF-44, Cooper Decl., at Ex. A; see Cooper Testimony, Trial Tr. vol. 1, 179:23-180:3 (testifying that he has drawn statewide plans in approximately forty states, but his main focus is on local jurisdictions). Since 2011, he has prepared more than 150 redistricting plans for local jurisdictions using the 2010 Decennial Census. PLTF-44, Cooper Decl., at Ex. A.

         Mr. Cooper’s election plans have been precleared and/or adopted in state or local jurisdictions on at least ten occasions. Id. Illustrative or proposed plans created by Mr. Cooper have also been ordered adopted as Section 2 remedies by the District of South Dakota in Bone Shirt v. Hazeltine, 387 F.Supp.2d 1035 (D.S.D. 2005), aff’d, 461 F.3d 1011 (8th Cir. 2006), and by the Eastern District of Washington in Montes v. City of Yakima, No. 12-CV-3108 TOR (E.D. Wash. Feb. 17, 2015). Over the course of his career, Mr. Cooper has testified at trial as an expert witness on redistricting and demographics in 36 federal voting rights cases and been deposed or entered declarations in an additional 33 voting rights cases. PLTF-44, Cooper Decl., at Ex. A. He has never been deemed unqualified to provide expert testimony. Trial Tr. vol. 1, 181:3-5.

         Mr. Cooper drew two illustrative seven-district plans on behalf of Plaintiffs to show that it is possible to create at least one subdistrict in which African Americans are a majority of the VAP. Joint Stip. ¶ 36; PLTF-44, Cooper Decl., ¶¶ 38-57. In each of the two illustrative plans drawn by Mr. Cooper, there are four districts in which Blacks are a majority of the VAP. PLTF-44, Cooper Decl., ¶¶ 38-57. Mr. Cooper used generally accepted demographic methods for creating the two illustrative plans. See Joint Stip. ¶¶ 37, 39, 40, 44, 45, 47; PLTF-44, Cooper Decl., ¶¶ 38, 39-42, 43-46, 51, Fig. 10 (p. 23), 55, Fig. 12 (p. 26); Cooper Testimony, Trial Tr. vol. 1, 181:16-185:8, 188:9-12.

         For each of Plaintiffs’ illustrative plans, all parts (i.e., census blocks) of each component election district are connected at some point with the rest of the district, so each component district is contiguous. Joint Stip. ¶ 49; PLTF-44, Cooper Decl., ¶ 60; Cooper Testimony, Trial Tr. vol. 1, 182:3-4; Gordon Testimony, Tr. vol. 1, 127:8-10.

         The “compactness” of a district can be measured using the Reock test, which compares the shape of a district to a circle, considered to be the most compact shape possible. The illustrative plans’ Reock scores show the component election districts are compact. PLTF-44, Cooper Decl., ¶¶ 58 n.11, 59; Cooper Testimony, Trial Tr. vol. 1, 195:7-20.

         In Plaintiffs’ Illustrative Plan 1, three of the 96 precincts in the District are split by district boundaries with a few additional precincts split by 2010 Census blocks, but no census blocks are split by district boundaries. Public schools are balanced across all seven districts with each district having two to five schools. Based on the addresses, at the time of election, of the individuals who were Board members at the time of trial, PLTF-44, Cooper Decl., at Ex. E-7, Ex. F-7 (addresses), three incumbents are paired in District 2 and two in District 7. Joint Stip. ¶ 46; PLTF-44, Cooper Decl., ¶¶ 51-53; Cooper Testimony, Trial Tr. vol. 1, 193:13-14, 195:2-6, 199:3-6, 199:23-200:5.

         In Plaintiffs’ Illustrative Plan 2, nine of the 96 precincts in the District are split by district boundaries with a few additional precincts split by 2010 Census blocks, but no census blocks are split by district boundaries. Public schools are balanced across all seven districts with each district having two to four schools. Based on the addresses, at the time of election, of the individuals who were Board members at the time of trial, PLTF-44, Cooper Decl., at Ex. E-7, Ex. F-7 (addresses), two incumbents who reside in District 2 are paired, but no other incumbents are paired. Joint Stip. ¶ 48; PLTF-44, Cooper Decl., ¶¶ 55-57. Because two incumbents live within the same Census block, there is no way to draw single-member districts that will separate those incumbents while also complying with traditional redistricting principles. See Cooper Testimony, Trial Tr. vol. 1, 197:4-11.

         Plaintiffs’ illustrative plans use the 2010 Decennial Census total population for the apportionment base. See Joint Stip. ¶ 43; PLTF-44, Cooper Decl. ¶ 40. Mr. Cooper’s testimony that illustrative plans must be drawn from the Decennial Census data, rather than the ACS estimates, was credible because it is undisputed that only the Decennial Census data goes down to the census block level. Because the ACS does not report census block-level data, it does not allow a demographer to avoid splitting census blocks, making it is impossible to measure precisely the population in a given voting district. See Trial Tr. vol. 1, 200:2-5, 203:5-204:17; see also RSMo. § 1.100.1; Trial Tr. vol. 1, 192:17-194:25.

         The addresses of the individuals who were members of the Board at the time of trial are all within the municipalities of Ferguson and Florissant, which together make up about two-thirds of the District spatially. See PLTF-44, Cooper Decl., at Ex. E-7, Ex. F-7; Cooper Testimony, Trial Tr. vol. 1, 197:21-198:3. It is undisputed that no current Board member resided in Berkeley, Kinloch, Cool Valley, or Normandy, which are more predominantly African American areas of the District. See Cooper Testimony, Trial Tr. vol. 1, 198:1-7.

         C. Gingles I Conclusions of Law

         I conclude that Plaintiffs have established Gingles I, i.e., that the African American population in the District is “sufficiently large and geographically compact to constitute a majority in a single-member district.” Gingles, 478 U.S. at 50. Plaintiffs’ expert demographer, William Cooper, presented two illustrative plans in which Black voters constitute a majority of the VAP in not just one but four of seven districts.

         As described above, Mr. Cooper is a recognized expert demographer in the context of § 2 analysis. For the very first time at trial, the District objected to Mr. Cooper being an expert. I overrule this objection and conclude that Mr. Cooper qualifies as an expert demographer and Plaintiffs have established by a preponderance of the evidence that his testimony is admissible. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 & n.10 (citing Rule 104(a)) (1993); Fed.R.Evid. 702; see also Pls.’ Post-Trial Br. at 2-4. I also find that Mr. Cooper’s testimony is reliable, and that Mr. Cooper testified credibly to the data and methodology used to develop Plaintiffs’ two illustrative plans. As a result, Plaintiffs have established by a preponderance of the evidence that his testimony is admissible. Daubert, 509 U.S. at 592 & n.10 (citing Rule 104(a)).

         1. Plaintiffs’ illustrative plans comply with constitutional requirements

         Mr. Cooper’s illustrative plans comply with one-person, one-vote constitutional requirements because they properly apportion the District’s total population across the districts with minor deviation, i.e., total population deviations of less than 10%. Evenwel v. Abbott, 136 S.Ct. 1120, 1124, 194 L.Ed.2d 291 (2016); White v. Regester, 412 U.S. 755, 764 (1973) (holding that plans with total deviation of less than 10% presumptively comply with one person, one vote). The plans also comply with traditional redistricting principles including contiguity, compactness, appropriate population-size deviations, keeping census blocks together, and incumbency protection. The District did not present any evidence to contradict either that these plans include majority-Black single-member districts or that the plans comply with constitutional requirements and redistricting principles.

         2. Gingles I does not require an effectiveness analysis

         The District argues that Plaintiffs’ illustrative plans do not provide an effective remedy. In fact, the District contends that the implementation of either of Plaintiffs’ illustrative single- member district plans will impede, rather than improve, African American voters’ ability to effectively elect candidates of their choice in FFSD Board elections.[8]

         Gingles I, however, only asks a simple threshold question: whether the protected group of voters can make up “more than 50 percent of the voting-age population in the relevant geographic area?” Bartlett v. Strickland, 556 U.S. 1, 18 (2009). “[T]he Supreme Court [at this stage] requires only a simple majority of eligible voters in the single-member district. The court may consider, at the remedial stage, what type of remedy is possible . . . . But this difficulty should not impede the judge at the liability stage of the proceedings.” Bone Shirt v. Hazeltine, 461 F.3d 1011, 1019 (8th Cir. 2006) (“Bone Shirt II”) (alteration in original) (internal quotation omitted). As a result, the District’s predictions about the ultimate effectiveness of Plaintiffs’ illustrative single-member district plans is irrelevant to the Gingles I threshold determination.

         3. Plaintiffs’ claim is not barred because of the size of the African American voting-age population

         The District also argues that Plaintiffs have not satisfied Gingles I because African Americans purportedly constitute a majority of the VAP in FFSD, and therefore already possess an opportunity to elect their preferred candidates under the existing at-large system. This argument fails for several reasons.

         As an initial matter, this argument is irrelevant because Gingles I requires no additional analysis of the demographics of the District or the illustrative plan districts beyond a showing that African Americans in the District are “sufficiently large and geographically compact to constitute a majority in a single-member district.” Gingles, 478 U.S. at 50.

         Moreover, even if this argument were relevant to the Gingles I inquiry, it is unpersuasive for two reasons. First, the District has not provided reliable data sufficient to overcome the presumptive validity of the 2010 Decennial Census, which indicates that African Americans are a minority of the FFSD VAP and outnumbered by whites. See Valdespino v. Alamo Heights Indep. Sch. Dist., 168 F.3d 848, 853-54 (5th Cir. 1999); United States v. Vill. of Port Chester, 704 F.Supp.2d 411, 439 (S.D.N.Y. 2010). Second, even if Black residents were to constitute a bare majority of the VAP in FFSD, vote dilution claims may go forward where, as here, the racial minority group in question has suffered a history of discrimination that inhibits their participation in the political process, such that they are disadvantaged by an at-large electoral arrangement. See Pope, 687 F.3d at 575 n.8; Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1041 (D.C. Cir. 2003); Meek v. Metro. Dade Cty., 908 F.2d 1540, 1545-46 (11th Cir. 1990); Monroe v. City of Woodville, 881 F.2d 1327, 1332-33 (5th Cir. 1989).

         a) African Americans do not currently constitute a majority of FFSD’s VAP

         The Decennial Census population data is the appropriate metric by which to determine the demographics of FFSD’s VAP. The Decennial Census is a full count of the nation’s entire population every ten years and provides an accurate and complete count of FFSD’s population and demographics. See Evenwel v. Abbott, 136 S.Ct. 1120, 1140-41, 194 L.Ed.2d 291 (2016) (Alito, J., concurring in judgment). According to the 2010 Census, African Americans are neither a majority nor a plurality of the total VAP of the District.

         Courts consider Decennial Census data “presumptively accurate.” See Valdespino v. Alamo Heights Indep. Sch. Dist., 168 F.3d 848, 853-54 (5th Cir. 1999); United States v. Vill. of Port Chester, 704 F.Supp.2d 411, 439 (S.D.N.Y. 2010). As a result, courts resolving Voting Rights Act claims in the Eighth Circuit regularly rely on Decennial Census data for determining the demographics of a jurisdiction.[9] See, e.g., Harvell v. Blytheville Sch. Dist. No. 5, 71 F.3d 1382, 1385 n.1 (8th Cir. 1995); Clay v. Bd. of Educ. of St. Louis, 90 F.3d 1357, 1359 (8th Cir. 1996) (“Clay II”); African Am. Voting Rights Legal Def. Fund, Inc. v. Villa, 54 F.3d 1345, 1347-48 (8th Cir. 1995); Jeffers v. Beebe, 895 F.Supp.2d 920, 925-26 (E.D. Ark. 2012); Bone Shirt v. Hazeltine, 336 F.Supp.2d 976, 983 (D.S.D. 2004) (“Bone Shirt I”).

         Courts presume the continued accuracy of the most recent Decennial Census figures absent a party meeting the burden of proving otherwise. See McNeil v. Springfield Park Dist., 851 F.2d 937, 946 (7th Cir. 1988). To show that there has been a substantial population shift rendering the actual count of the Decennial Census data inaccurate, the party challenging the use of the Census data must “thoroughly document[]” changed population figures with “a high degree of accuracy, ” a showing that must be “clear, cogent and convincing.” Perez v. Pasadena Indep. Sch. Dist., 958 F.Supp. 1196, 1210 (S.D. Tex. 1997) (citation omitted), aff’d, 165 F.3d 368 (5th Cir. 1999); Vill. of Port Chester, 704 F.Supp.2d at 439; see also Kirpatrick v. Preisler, 394 U.S. 526, 535 (1969).

         The District presents three sets of data that it argues should be used to determine the Black VAP: (1) 2011-2013 3-year American Community Survey (“ACS”) population estimates, (2) Dr. Rodden’s estimates of the “any part Black” VAP, and (3) Dr. Rodden’s population projections based on his trend analysis. As explained below, none of these data sets are sufficient to overcome the presumptive accuracy of the 2010 Decennial Census count, which states that Blacks are a minority of the VAP in the District.

         i. The 2011-2013 ACS estimates

         The ACS publishes no data that overcomes the presumptive validity of the 2010 Decennial Census’s count of the Black VAP in the District. As an initial matter, there is no information published by the ACS that, on its face, indicates that African Americans are a majority of the VAP in the District. Although the 2011-2013 ACS population estimates for the District suggest that single-race African Americans may now be a plurality of the VAP in the District at 48.9%, they do not show that single-race African Americans are a majority of the VAP. And the ACS reports no estimate for the percentage of the VAP in the FFSD that is “any part” Black.

         But even considering the ACS estimates of the single-race Black VAP in the District, it is crucial to recognize that the margins of error in the 2011-2013 ACS for the District’s VAP are too wide to establish that the demographics of the FFSD population have substantially changed since 2010. The ACS provides a population estimate with only a sufficient degree of certainty to say that the actual number is within a particular range. Because ACS population estimates are based on a sample, and not a complete count like the Decennial Census, they are subject to sampling bias, i.e., error margins or confidence intervals. The Census Bureau itself cautions against using ACS estimates rather than the Decennial Census complete count to determine the population of a given geographic area.[10]

         Here, the 2011-2013 ACS estimates fail to establish with statistical confidence that the single-race Black VAP has grown larger than the white VAP in the District. The 2011-2013 ACS survey estimates state with 90% certainty that the single-race BVAP is between 22, 800 and 25, 826 and that the single-race non-Hispanic white VAP is between 21, 829 and 24, 655. As estimated by the 2011-2013 ACS, the margins of error for the single-race BVAP and white VAP overlap, which means that the difference in the two population figures is not statistically significant. See Gordon Testimony, Trial Tr. vol. 1, 135:22-136:2.

         In fact, given the margins of error, the 2011-2013 ACS estimates do not establish that the Black VAP of the District has substantially changed since 2010. The 2011-2013 ACS survey estimates state with 90% certainty that the single-race Black VAP is between 22, 800 and 25, 826, [11] a margin of error that includes the Decennial Census single-race Black VAP count of 24, 030. Put another way, according to the ACS confidence interval, the single-race Black VAP could be as small as 22, 800, which is actually less than the 2010 Census estimate of 24, 030. As a result, given the large margin of error, the most recent three-year ACS estimate of the District’s single-race Black VAP is not statistically distinguishable from the single-race Black VAP reported by the Decennial Census. See Rodden Testimony, Trial Tr. vol. 5, 177:5-21. And the ACS estimated change in the single-race non-Hispanic white VAP is not substantial.[12]

         Accordingly, because the error margins in the 2011-2013 ACS are too large to constitute statistically significant evidence that the Black VAP outnumbers the white VAP in the District, or that the demographics in the District have substantially changed since 2010, the District has failed to meet its burden of proving with “clear, cogent and convincing” evidence, and to a “high degree of accuracy, ” that there has been a substantial population shift rendering the actual count of the 2010 Decennial Census data inaccurate such that I should reject the 2010 Decennial Census’s count of African Americans as less than a majority of the District’s VAP. Perez v. Pasadena Indep. Sch. Dist., 958 F.Supp. 1196, 1210 (S.D. Tex. 1997) (citation omitted), aff’d, 165 F.3d 368 (5th Cir. 1999).

         ii. The District’s population estimates of the any-part Black VAP

         As noted above, the ACS reports that, at most, single-race African Americans are estimated to be a plurality but not a majority of the District’s VAP. Accordingly, there are no published government data stating that African Americans-including individuals who are two or more races and “some part” Black-are the majority of the VAP. The only figures that even purport to show that African Americans are a majority of the District’s VAP are Dr. Rodden’s estimates of the number of voting-age individuals in FFSD who are “any-part” Black. See Rodden Testimony, Trial Tr. vol. 5, 174:9-15. These estimates, however, suffer from three limitations that diminish their reliability, leading me to find that these estimates are not sufficient to overcome the presumptive accuracy of the 2010 Decennial Census.

         First, Dr. Rodden’s calculations are based on ACS data, which, for the reasons discussed above, cannot overcome the Decennial Census’s presumptively accurate complete count.

         Second, in his estimate of the number of multi-race individuals in FFSD who are any-part Black and 18 years of age or older, Dr. Rodden cannot report any error margins, Rodden Testimony, Trial Tr. vol. 5, 170:2-8, which renders this estimate inconsistent with generally accepted professional standards in political science. When making estimates, the smaller the survey sample, the larger the error margin. Here, the ACS survey samples only about 2% of the total population. See Gordon Testimony, Trial Tr. vol. 1, 133:18-134:5. Dr. Rodden’s attempt to produce an estimate of the any-part Black VAP in FFSD entailed extrapolating from a tiny slice of that 2% sample (i.e., mixed-race individuals who are part-Black and live within FFSD). See Gordon Testimony, Trial Tr. vol. 1, 136:5-12. Although Dr. Rodden described his calculations here as relatively simple, the expert demographers at the Census Bureau declined to publish estimates for the category of any-part Black for the VAP of FFSD in the 2011-2013 three-year ACS. See id., 174:9-15. Notably, other courts have ...


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