Fourth Circuit hears arguments in case challenging Virginia House of Delegates election

RICHMOND, Va. (CN) — A Fourth Circuit panel was forgiving as a Democratic Party activist struggled on Tuesday to explain how he was injured by the use of old district lines in Virginia’s 2021 House of Delegates election. 

Paul Goldman, a lawyer and long-time member of the state’s Democratic Party, argued on behalf of himself before the Richmond-based three-member panel that the state’s use of district lines drawn in 2011 during the 2021 race amounted to a violation of the 14th Amendment. 

“The citizens have the right to vote for a constitutionally sound legislature as soon as possible,” he said. “ They denied me in 2021 and I don’t want to wait.” 

But U.S. Circuit Judge James Wynn, a Barack Obama appointee, questioned the calculation method used to come up with, what Goldman argued was, malapportioned districts. 

By the activist's math, his district was way outside population deviations that could be allowed and his vote wouldn’t equal those in other districts until the next election in 2023 without federal intervention.

“If you revise this map and look at how you’re actually going to be voting, I’m not sure if there’s a reduction or increase in your method,” Wynn said, pushing back on Goldman's count and instead suggesting such a deviation couldn’t be determined until after maps were drawn — after Goldman filed suit. 

“Once its revised then there’s a comparison of one-person/one-vote principle,” the judge added. “You are looking at the old ones as opposed to how it's ultimately going to happen.”

Goldman’s problems started long before the debate over the merits of the election dispute began. 

While the activist’s suit survived a motion to dismiss last October, the state, on behalf of Virginia's Department of Elections, soon appealed on standing and jurisdictional grounds. Under rules of civil procedure, Goldman would have to overcome those issues before merits could be properly addressed. 

Virginia Solicitor General Andrew Ferguson, arguing on behalf of the board, came prepared to shred Goldman’s standing out of the gate. 

“The election is fully in the past, his standing comes from a hypothetical future: If the district court imposes a new election he will run in that election,” Ferguson said, pointing at a section of Goldman's standing argument in which he hinted at a future candidacy. “That’s not enough.”

And while Goldman argued the appeal amounted to an effort to drag out the dispute past a point when new elections could be called, Ferguson said the state was prepared to challenge such claims.  

“We don’t think the 14th Amendment requires states to reapportion on the basis of census data that does not exist when the electoral process has begun,” the state’s attorney argued. 

Instead, Ferguson suggested Goldman’s claims amounted to an effort to poke holes in the electoral process. As long as they remain unresolved, he argued, there would be “some systemic concerns about what the electoral process will look like.”

“Resolving the standing issue, in that he doesn’t have any, will help alleviate systematic uncertainty,” he said. 

The basis of the fight stem’s from Virginia’s founding document, which specifically requires 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 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. 

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. 

If Tuesday’s hearing is any indicator, that slow walk could continue.

U.S. Circuit Judge Robert King, a Bill Clinton appointee, and U.S. Circuit Judge Allison Rushing rounded out the panel. They did not signal when they intended to rule, however reports suggest a final order from a judge requiring a new election would be needed by early July if a new election were to be held.

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