Virginia Redistricting Battle Takes Shape at High Court

Former California Governor Arnold Schwarzenegger speaks in front of the U.S. Supreme Court in Washington at an Oct. 3, 2017, rally supporting nonpartisan redistricting. (Photo courtesy of One Virginia 2021)

WASHINGTON (CN) – Beginning a two-week stretch in which gerrymandering returns to the high court, the justices of the Supreme Court will consider on Monday whether the Virginia Legislature improperly carved up its map to disadvantage black voters.

This will be the second time the map Virginia lawmakers drew in 2011 comes to the Supreme Court, as the justices previously sent the case back to U.S. District court after finding the three-judge panel there that upheld the map used the wrong standard.

Virginia legislators faced a time crunch after the 2010 census because the state holds elections in odd-numbered years. The numbers came in from the census in 2011, giving lawmakers precious little time to redraw the map to account for recent populations shifts in time for that year’s election.

Unlike with partisan gerrymandering, which the justices will consider later this month, the Supreme Court has developed a clear standard by which to judge claims of racial gerrymandering. Over a line of cases stretching back to the 1990s, the court has determined that a map is an unconstitutional racial gerrymander if race is the predominant factor on which it was drawn.

But that standard also puts states in something of a bind, because the Voting Rights Act prohibits states from enacting voting laws that discriminate on the basis of race. Joshua Douglas, a professor at the University of Kentucky College of Law, said this gives legislators a narrow pass to navigate.  

“The doctrine here makes it a little bit of a balancing act for a state, where you have to make sure you’re not using race too much, but also make sure you have enough minority-majority districts or districts in which a minority can elect candidates of their choice to a sufficient amount such that there would not be Voting Rights Act Section 2 liability,” Douglas said in an interview.

The Virginia House of Delegates says it stayed within the bounds of the Supreme Court’s precedents and the Voting Rights Act when it put together a map that included 12 districts with at least 55 percent black voting-age population.

The map went into effect, but in 2014 a group of voters brought a lawsuit challenging the map as an unconstitutional racial gerrymander. The suit named state officials and agencies as defendants, but the House of Delegates intervened, seeking to defend the constitutionality of the map it passed.

After a three-judge panel in District Court upheld the map, the Supreme Court found that improper legal standards were applied for 11 of the challenged districts. The lower court then ruled the other way on reconsideration, finding that race predominated as a factor when the districts were drawn.

The Virginia House of Delegates appealed the decision to the Supreme Court, but the question of whether it should even have been allowed to do that could be a decisive one in the case. After taking up the case, the justices in November asked the parties to explain not just why they think the map should or should not stand, but also whether the House has standing to bring the appeal, a threshold issue all parties must show before a court considers a case.

Michael Li, senior counsel for the Brennan Center’s Democracy Program, said the justices’ interest in answering the standing question was something of a surprise and could indicate the court is looking to limit lawmakers’ ability to defend the maps they draw. Li said legislatures have defended maps in places like Pennsylvania in the past and that the court could narrow the scope of cases it takes by clarifying its position on lawmaker standing.

“It created racial gerrymandering in the ’90s, and it has struggled since to actually make the doctrine work, and so maybe this is one way to help do that,” Li said in an interview. 

The Virginia attorney general, now on the side of the voters who challenged the map, says the House of Delegates does not have standing because his office, not the single chamber of the state’s bicameral Legislature, has the authority to defend the state’s laws. Because the state did not appeal the District Court’s decision, this is the first time the House of Delegates has needed to show it satisfies the requirements for standing, the Virginia attorney general argues.

Virginia’s attorney general says the House of Delegates does not meet these requirements because it has not shown its members have suffered an actual harm by the map being struck down.

“A judicial decision that specific redistricting legislation is inconsistent with the federal Constitution does not take away a state legislative chamber’s ability to participate in redistricting,” the attorney general’s brief states. “Nor does such a decision ‘nullify’ the votes cast in favor of such legislation any more than any other judicial decision concluding that a particular state law violates the federal Constitution.”

The House of Delegates counters by saying the attorney general’s view of the standing issue would give the office overly broad power to keep others from challenging judicial decisions that are political advantageous to the attorney general’s party. The lawmakers also say they are harmed because they will either need to run in new districts or give up their redistricting authority to a court.

“The House plainly suffers injury in fact, both in the loss of its redistricting authority to the court and a special master and in the concrete reality that its members now represent unlawful districts and will face reelection in different court-drawn districts,” the House’s brief states. “The distinct injuries to the House are evident in the district court’s order requiring the legislature – not any executive branch official – to redraw maps promptly or yield that authority to a special master.”

If the court gets by the issue of standing and studies the facts of the map, the House of Delegates says it followed allowable redistricting criteria and did not rely too much on race when redrawing districts under  the pressures of a looming election deadline. To the extent that it considered race when drawing the map, it says it had to do so to comply with the requirements of the Voting Rights Act.

“Race predominates in redistricting cases only if it dominates and controls line-drawing decisions and thereby subordinates traditional redistricting principles,” the House’s brief states. “That did not occur in Virginia in 2011.”

But the voters say the District Court was wise to see through the House’s justifications, insisting that lawmakers had been “inflexible” in adhering to the 55 percent black voting-age population floor for the districts. They also say the district court’s decision was reasonable and based on a deep record of facts and expert testimony.

“The panel’s predominance findings are based on its hard-won expertise in the minutia of Virginia’s geography and the 2011 redistricting process,” the voters’ brief states. “Those findings are fully supported by the record and at the very least are ‘plausible’ and thus not clearly erroneous.”

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