Virginia Republicans Ask Supreme Court to Redraw Districts

March 18, 2019 Updated: March 18, 2019

WASHINGTON—Virginia Republicans urged the Supreme Court to quash a lower court ruling that redrew 11 districts in the Virginia House of Delegates after finding their boundaries had been drawn to dilute the power of black voters.

The racial gerrymandering case is important because the redistricting imposed by a three-judge panel of the U.S. District Court for the Eastern District of Virginia could help determine which party controls the House in Richmond after future elections. Currently, party standings in the chamber are 51 Republicans to 49 Democrats. Republicans also narrowly control the state Senate, where they occupy 21 of the 40 seats.

Republicans, led by Speaker of the House Kirk Cox, want to discard the court-ordered map and revive the old one. Democrats, on the other hand, prefer the new map. The case has made it to the Supreme Court twice before. Both times Democrats prevailed.

Republicans say the map abandoned by the lower court was approved with bipartisan and black leaders’ support and was cleared by the Obama-era Department of Justice, which was enforcing the Voting Rights Act to guarantee that black voters were treated fairly. Despite this, the lower court found that black voters were bunched together in districts in a manner that unconstitutionally deprived them of representation.

But this time, the justices may not even get around to considering the merits of the complex case. This is because the legal standing of the House to bring a lawsuit on behalf of Virginia is hotly disputed. Virginia Attorney General Mark Herring, a Democrat, argues that the members of one of the two chambers of the General Assembly have no legal right to speak for the Old Dominion and have usurped his authority to defend state laws in court.

During oral arguments March 18, Justice Sonia Sotomayor seemed to agree with Herring’s position.

The Supreme Court would take a “radical new step” if it determined that a legislative chamber could participate in a lawsuit separately from the state, she said.

Sotomayor suggested the House’s claim that it was harmed by the district court ruling, which failed to fundamentally alter the institution, was weak.

“It may change the membership of individuals,” she said. “But it doesn’t change the processes of the legislature.”

Justice Stephen Breyer wondered aloud if anyone had the legal right to challenge the district court ruling if the state’s Democratic-controlled executive branch failed to do so.

“The governor won’t,” he said in reference to Gov. Ralph Northam. “Because he likes it politically, so who will?”

Breyer asked if there was “a way to challenge standing.”

Virginia Solicitor General Toby Heytens, representing Herring, replied, “I don’t think the court needs to decide in this case.”

“I’d like to decide,” Breyer shot back, to laughter from the audience.

Responding to Justice Samuel Alito, Heytens said “no one is disputing there’s a judicially cognizable injury here … [but it] is to the sovereign whose law was declared unconstitutional, and that sovereign is the Commonwealth of Virginia,” not to the House of Delegates which is just “one of the constituent parts of the state government.”

As to the merits of the case, Justice Brett Kavanaugh seemed to defend the House’s use of race in drawing the map.

If the chamber allowed the black voting population in districts to drop all the way down to 50 percent, Kavanaugh said, lawmakers would get “hammered from the other side” for blocking black voters from having electorally significant majorities.

“I’m wondering why 55 [percent] is so problematic here, given that the states have to have some flexibility,” he said.

Sotomayor said evidence showed detailed racial sorting, sometimes so precise that lines divided streets between white households on one side and black households on the other.

Race has to be the dominant factor “when they’re getting down to the nitty-gritty of what side of the street you live on,” she said.