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SCOTUS Questions Standing in Va. Redistricting Fight

WASHINGTON (CN) - While Virginia Republicans refuted before the Supreme Court Monday claims that their state Legislature's redistricting plan was based on race rather than politics, the justices seemed more interested in determining if the lawmakers can bring the case at all.

The Supreme Court heard arguments Monday in Whittman v. Personhuballah, the latest racial gerrymandering case to come before the court, and spent much of the day debating whether the Republican lawmakers appealing a lower court decision declaring Virginia's 2012 redistricting plan as unconstitutional have standing to appeal.

The redistricting plan at issue centers on Virginia's Third Congressional District, which some say was redrawn in 2012 to pack black voters into a single voting district to limit their political impact.

Most of the district is a squat, jagged rectangle that starts at Richmond and follows the James River toward the central Virginia coast. But the district breaks up when it nears the Chesapeake Bay, skipping over a chunk of land to envelop parts of Newport News, Hampton and Norfolk, all of which contain significant black populations.

As a result, 56.3 percent of the Third District's voting-age population is black, making it the only minority-majority district in the state.

Two voters in the district, Gloria Personhuballah and James Farkas, challenged the redistricting in 2013, saying it unconstitutionally reduced the influence of African-Americans in other districts. The U.S. District Court for the Eastern District of Virginia agreed and has twice struck down the 2012 lines, replacing them with a new map meant to balance the racial makeup of the district.

But the whole of Virginia's congressional delegation appealed the lower court's decision, arguing the Legislature's motivations in redistricting were with protecting incumbents, not with drawing lines based on race.

That race and partisanship are so closely tied does not mean the Legislature was acting with a racist intent when dividing up the voting population, the lawmakers argued.

While the lawmakers opened up oral arguments Monday by reiterating this point, the question of the Legislature's motivation was not the predominant one the Supreme Court considered.

Instead, the eight-justice panel seemed keenly interested in whether the 10 current and former lawmakers can challenge the lower court decision at all.

None of the lawmakers who are appealing the lower court's decision live in or represent the Third Congressional District, though the group Monday insisted this is irrelevant.

The lower court's new lines have turned Rep. Randy Forbes' toss-up Fourth Congressional District deep blue, forcing the longtime congressman to seek election in a different district, Michael Carvin, who represents the Republicans, told the Supreme Court Monday.

Forbes has held office since 2001 and the redrawn lines have therefore caused him enough harm to give him standing to challenge the lower court's decision, Carvin argued.

"Defendants appealing an adverse order never argue that the adverse order violates their constitutional rights," Carvin said, according to a transcript. "They're arguing that it disrupts the status quo by changing the rules, and the status quo is what they are defending."

Carvin noted legislatures can redraw their lines to protect incumbents, and suggested hurting Forbes' chance of winning reelection would be an overreach by the judicial branch.


"If it is undisputed, as it is, that the sole reason that Rep. Forbes is now facing doom in District Four is because of this order, I can't understand any reason why the court would sit back and allow the federal judiciary to hijack the most intensely partisan kind of litigation we have," Carvin said.

But the justices seemed unconvinced that Forbes and the other lawmakers have standing.

Justice Sonia Sotomayor suggested allowing Forbes and his colleagues to challenge the order could open the floodgates of lawmakers challenging redistricting plans.

"Every time your district is changed and you believe it hurts you, you have a right to go to court and say what?" Sotomayor asked.

Justice Stephen Breyer seemed confused about where to begin in analyzing the case because he could not determine who the lawmakers were accusing of harming them.

"It's rather like Smith sues Jones for a nuisance," Breyer said. "There's an order entered. It is an injunction. Jones's neighbor Brown says this injunction is hurting me. Now, does Brown have standing?"

When the arguments got back to the specifics of the redistricting plan, many of the justices also seemed skeptical of Carvin's arguments concerning the validity of the legislature's 2012 map. Carvin explained race was a secondary factor in redrawing the lines, as it was an unintended result of the primary motivation of protecting incumbents.

He also noted the voters challenging the map never proposed a way to protect incumbents that didn't involve race, which he said is a requirement for such challenges. If his clients were acting with race primarily in mind, "it should be simple as pie" for the challengers to come up with a new map that protects incumbents without drastically altering the racial makeup of the voting district, Carvin said.

But Justice Elena Kagan suggested Carvin's position that race and partisanship are inextricably tied "insulates" line-drawers from claims of racial motivations.

"That sounds to me as though it's a harmless-error rule for racial discrimination," Kagan said. "And we've never had a harmless-error rule for racial discrimination. What we've said is, 'Look, we just found racially discriminatory purpose, end of case.'"

The representatives of the state of Virginia backed up Kagan's opinion when they took the podium for argument. Stuart Raphael, who argued for the chair, vice chair and secretary of the Virginia State Board of Elections, pointed out the trial court found lawmakers aimed to make the Third Congressional District at least 55 percent black when redrawing the lines.

The 55 percent threshold, which Raphael said an expert witness testified to at the trial court trial, allowed the lower court to apply strict scrutiny to the 2012 map, helping it reach the conclusion that the lines were racially motivated.

The state originally backed the lawmakers at trial, but switched after the lower court decision.

Still, even the state sided with the lawmakers on the issue of standing.

"Are we happy about it?" Raphael asked. "No, we don't want officious intermeddlers to prolong litigation, and maybe they'll be responsible for the state's attorney's fees if we have to pay the plaintiffs' attorney's fees."

The voters who challenged the law mirrored the state's line of thinking on the question of racial motivation, saying the "mechanical target" of aiming to hit a certain percentage of black voters triggered strict scrutiny from the district court.

"The fact is that ­ under the American system, voters choose candidates," voters' attorney Marc Elias said. "They choose their elected officials. It is not the other way around. I listened intently to the arguments of counsel and the fact is, this is not a question of what they did to Mr. Forbes. It's a question of what the state of Virginia did to the voters throughout the commonwealth, including in the Third Congressional District, the Second and the Fourth."

But when Elias insisted the 2012 map was racially motivated, Chief Justice John Roberts pushed back by asking how the justices are supposed to determine a legislature's intent in its redistricting plan.

If 10 percent of the Legislature admits to being racially motivated, another 10 percent claims to have only thought about protecting incumbency while the remaining 80 percent remains silent, how is a party supposed to prove race rather than politics motivated redistricting, Roberts asked, repeating a question he asked of every party Monday.

Elias admitted in this circumstance the debate would be a tie. And when Roberts pressed him further, he acknowledged that would not be good for his clients.

"We would lose if it's a tie, but in this case there is no tie," Elias said. "There's nothing even approaching a tie. The Legislature set a 55 percent threshold."

But Sotomayor sided with Elias' argument regarding the alleged black-voter threshold.

"If you're race-neutral, you move people not on the basis of their skin color but on some neutral principle," Sotomayor said. "And you have shown that at least five precincts were moved where it wasn't on the base of partisanship, it was on the basis of race."

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