After years of legal maneuvering and roughly $4.5 million spent by Republican leaders in the House of Delegates, Virginia’s long-running lawsuit over racial gerrymandering is heading to the U.S. Supreme Court for what could be the final battle.
On Monday morning, the high court will hear oral arguments in the case that has forced Virginia to adopt a redrawn House map that has already reshaped the political landscape heading into a high-stakes election year.
“What’s at stake is the future of who controls the General Assembly,” said Carl Tobias, a professor at the University of Richmond School of Law who has followed the case.
House Republicans — who have vigorously defended the constitutionality of the redistricting plan they passed in 2011, despite multiple legal defeats — will ask the Supreme Court to overrule a lower court opinion that found 11 House districts unconstitutional. As of December, the House GOP had paid its lawyers $4.46 million in public money to defend the map, a bill likely to rise with all the legal work associated with Monday’s hearing.
Democratic-aligned lawyers will ask the Supreme Court to let the ruling stand, saying Virginia voters deserve to have new, constitutional districts in place this fall for the last General Assembly election cycle of the decade.
If they stand, the new districts — drawn by California political science professor Bernard Grofman — would make it harder for House Republicans to defend their 51-49 advantage. With all 100 House seats up for election, Grofman’s map could tilt up to six GOP-held districts in favor of Democrats.
If the Supreme Court overrules the lower court’s decision, it could cause major disruptions to an election cycle that’s already underway using the new lines. Because the changes to the 11 contested districts affected neighboring areas, the new map alters a total of 26 districts.
Here’s a refresher before Monday’s hearing.
What’s redistricting again?
Every 10 years, state lawmakers redraw the lines for General Assembly and congressional districts to keep up with population shifts. In the redistricting process, lawmakers take fresh U.S. Census data about where people live and divide up the state accordingly. Each district has to be roughly equal in terms of population size, so that one person’s vote carries the same weight as everyone else’s.
But some people think letting elected officials draw their own districts is a recipe for all kinds of mischief, pitting politicians’ self-preservation instincts against the need for fair, logically shaped districts that keep communities together. For years, anti-gerrymandering advocates have pushed for an independent redistricting commission that would give map-drawing power to a bipartisan or nonpartisan panel of experts.
In the 2019 session, the General Assembly gave initial approval to a constitutional amendment that would create a bipartisan redistricting commission. Before becoming official, it has to pass the legislature again next year and win approval from voters in a November 2020 statewide ballot referendum.
Whether that happens or not, anti-gerrymandering advocates say the drawn-out legal fight over racial gerrymandering is a good example of why the state needs a different system for the next redistricting in 2021. No matter what happens, the lines in place for this November will change again for the 2021 House races.
So what’s the lawsuit about?
A group of Virginia voters filed the federal suit near the end of 2014 with the help of Democratic superlawyer Marc Elias. The plaintiffs argued that lawmakers violated their rights in 2011 by using predetermined racial targets to draw black voters, who historically vote Democratic, into certain districts, diluting their political influence elsewhere and bolstering Republican dominance in the House.
The lawsuit centered on a dozen districts in the Richmond, Petersburg and Hampton Roads areas. The key issue was House leaders’ use of a 55 percent black voting age population threshold for the districts in question. The plaintiffs argued that by elevating race above other redistricting criteria, House leaders had violated their constitutional rights by allowing skin color to drive decisions based on a one-size-fits-all racial quota.
Republicans argued they had to take race into account to comply with the Voting Rights Act and its rules meant to prevent “retrogression” in black voting power. In 2011, Virginia was one of several Southern states required to clear election-related changes with the federal government, due to its history of racial discrimination. House Republicans have repeatedly pointed out that President Barack Obama’s Justice Department approved the redistricting plan and that it passed the legislature with bipartisan support.
With no evidence introduced showing the House GOP had overtly nefarious racial motives, the case hinged largely on lawmakers’ recollections of why they drew the lines the way they did and whether race was or wasn’t the dominant factor.
In 2015, a three-judge panel upheld the 12 districts as constitutional. In 2017, the Supreme Court ordered the judges to reconsider the case, using a narrower legal standard. One district was removed from the lawsuit after judges agreed that the 55 percent black voting age population target was tailored for that district’s specific demographics.
In a 2-1 opinion last summer, the lower court found the remaining 11 districts unconstitutional and ordered the state to fix the map. After the General Assembly and Gov. Ralph Northam couldn’t agree on a solution, the court hired Grofman to do it instead.
Republicans appealed last year’s ruling to the Supreme Court and tried unsuccessfully to get the courts to stop Grofman’s work until their appeal is resolved.
What are they arguing Monday?
First, the Supreme Court has to decide whether the House of Delegates has standing to bring the appeal.
Virginia Attorney General Mark Herring, who defends the state in most legal matters, says the answer is no, because he chose not to appeal the opinion himself, and one legislative chamber can’t claim to represent the whole state.
The House GOP’s lawyers argue that as the body that drew the map, the House has every right to intervene in court to defend its action and speak up on a matter that affects the people who serve in the chamber.
The plaintiffs in the case are also arguing the House lacks standing to appeal.
The federal government has taken a mixed position, arguing the House doesn’t have standing for an appeal but supporting the House’s contention that the lower court’s ruling was flawed.
Apart from the technical question of standing, the meat of the appeal centers on whether the lower court did the proper analysis to arrive at the conclusion that race was the dominant factor and whether the Voting Rights Act was a valid justification for the House’s use of racial targets.
In Supreme Court filings, Republicans have argued the lower court’s ruling creates a muddled legal standard that deprives the legislature of its constitutional powers to draw the lines.
“[T]he choice is between a duly-enacted, bipartisan-supported map that reflected a good-faith effort to comply with the Voting Rights Act (“VRA”) and has governed four election cycles, and a judicially-imposed map that is race-conscious and fundamentally alters the political landscape in Virginia,” wrote the House GOP’s lawyers from the law firm BakerHostetler.
Lawyers for the plaintiffs have argued that Republicans are trying to “scrape together some valid justification” for using fixed racial targets that are plainly unconstitutional.
“To hold otherwise would turn the VRA on its head, transforming it into what amounts to a tool for perpetuating electoral racial segregation,” wrote Elias and his team from the Perkins Coie law firm.
When will we know the outcome?
That depends. If the Supreme Court decides the House doesn’t have standing to appeal, its decision could come fairly soon and everyone will move on with the elections as planned. If the justices decide the House has standing, it might take some time to sort out the complex legal questions about black voting age population thresholds and racial predominance.
The opinion might not come until May or June, adding an element of uncertainty to the House primaries slated for June 11.
Two new conservatives — Justices Neil Gorsuch and Brett Kavanaugh — have joined the Supreme Court since the first hearing in the case.
“It’s just very difficult to predict what the Supreme Court might do here,” Tobias said.