RICHMOND, Va. (CN) — The fight over district lines used in Virginia’s 2021 House of Delegates election got more complicated Friday, less than a week before an appeal in the dispute was set to go before the Fourth Circuit.
Virginia is one of a handful of states which hold elections the year after the decennial census. That electoral deadline was already enshrined in the state’s Constitution, but the demand for new lines in 2021 was specifically reinforced via a voter-approved redistricting amendment passed in 2020. The coronavirus and steps taken by the administration of former President Donald Trump, however, complicated the national count, delaying results until past the usual deadline the state needs to meet to get new lines drawn.
Democratic activist Paul Goldman filed a lawsuit in June 2021 to hold the state’s Board of Elections and others to these constitutional claims, but it was slow-walked and elections were held using old lines.
Then, in an October opinion by U.S. District Judge David J. Novak, Goldman’s claims survived a motion to dismiss, finding he had standing to sue the Virginia Board of Elections and its head over their role in conducting the allegedly unconstitutional races.
But a day after the standing opinion was issued, Judge Novak asked for and received a three judge panel to oversee the case. He cited federal law which requires such a panel when “the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body” is at stake.
The state has since appealed the standing decision, and oral arguments in that fight are set for Tuesday, March 8. But on Thursday, Goldman filed a motion to dismiss that appeal. According to his filing, once Novak transferred the case to the three judges, his order is either unenforceable or at least only appealable to the newly empowered panel.
“Once you establish a three member court they control everything,” said Goldman in a phone interview Friday.
In a response to his motion, Virginia Solicitor General Andrew Ferguson said in a filing submitted Friday that judicial efficiency was better served with the Fourth Circuit deciding Goldman’s standing claim. He argued returning the case to the lower court may require the panel to decide if they were properly constituted in the first place and then weigh in on the standing issue all over again.
“Nobody has said that I’m wrong on the law,” Goldman said in response to state’s brief. “They’ve been able to delay it so long, including appealing it to the wrong court, and if that doesn’t work they’ll just keep appealing anyway.”
Goldman isn’t alone in his fight; the Virginia NAACP, Virginia League of Women Voters and the ACLU of Virginia have all offered statements of support in the effort.
“Now that we have fair, non-partisan maps, we should have an election where legislators run for election in those new, more representative districts,” said ACLU of Virginia Executive Director Mary Bauer in a statement released Friday afternoon.
But noticeably absent from the debate is leadership from those who would be most impacted by new elections: House of Delegate members. Neither the Virginia Democratic Party nor the Virginia GOP have offered comment on the legal dispute.
Democratic Delegate Marcus Simon is among those who would have to run again this year if the court found as such, but he said the complications it would entail would be hard to address. Among the short term concerns is the newly drawn lines have put dozens of elected officials into one another's' districts, himself included. If he chose to try and keep his seat, he'd have to move and declare residency, along with many other fellow delegates, in their old or new districts.
“There doesn’t seem to be much enthusiasm from anyone except Goldman,” he said of the ongoing court dispute. And while some political groups may have put out supportive statements, the lack of amici briefs supporting the activist's legal theory is noticeable.
Simon also thinks the remedy in question — Goldman has asked for new races this year and then another round of races in 2023 as scheduled — might not be as much of an issue as imagined. The state’s Senate district lines were also re-drawn last year, he said, but they aren’t up for reelection until 2023, taking office in 2024, meaning Virginia senators are failing to accurately represent their populations for three years.
“What is uniquely damaging waiting one more year?” he asked of his possibly unconstitutional term compared to his fellow elected officials from the other chamber.
But that doesn’t mean Simon is opposed, he’s been aware of the issue since it was first brought up early last year. If the courts do force 2022 races, he said it would have to happen quickly. Beyond incumbents finding new places to live, there’s signature collection requirements to get on the ballot, primaries, absentee voting deadlines and all the work the state’s Election Board must do before a race could happen this year.
“You could compress those times frames with a court order, but we’d need to know by June; July 1 would be the absolute latest,” he hypothesized.
As for Goldman, he’s hopeful he can find redress for his constitutional concerns. Between the existing state constitutional language and the voter approved amendment, he’s confident he’ll get the outcome he seeks, but not if the state and the courts keep dragging their feet.
“I kinda feel like the jurisprudential version of Sisyphus,” he said, comparing himself to the Greek myth, doomed to roll a rock up a hill for all eternity. “I’m condemned to push this case right to the top only to have it fall down.”
Pending an order on Goldman’s motion to dismiss the appeal, oral arguments are set for his case at the Fourth Circuit Tuesday afternoon.
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