WASHINGTON, D.C. -- The fate of voting districts for an estimated 370,000 Virginians go before the Supreme Court of the United States (SCOTUS) Monday morning. Republican leaders in the Virginia House of Delegates are asking SCOTUS overturn a 2018 lower court ruling that found 11 minority-majority legislative districts were racially gerrymandered when they were initially drawn in 2011.
Oral arguments before the nation's highest court take place Monday morning. The decision by the Supreme Court could directly impact primary election dates, voting districts, and the balance of power in the House of Delegates.
The 2018 federal court ruling found Virginia's House map unconstitutional, and in February, the lower court implemented a new map drawn by a California scholar. More than 370,000 voters in 25 House districts were moved under the new plan, according to the Virginia Public Access Project (VPAP). Virginia House Republicans are asking the Supreme Court to vacate the lower court ruling.
In the June 2018 decision, the court found that the challenged districts were “drawn primarily on the basis of race in violation of the Equal Protection Clause of the Fourteenth Amendment.”
There are two overarching legal questions in the case before SCOTUS, according to court filings and outside observers.
First, do GOP leaders in the House of Delegates have legal standing to bring the appeal? Virginia Attorney General Mark Herring did file the appeal. Herring's office and the challengers who filed the initial lawsuit in 2014 argue the Attorney General represents the legal interests of the state, so leaders for one chamber of the General Assembly do not have the legal standing to file the appeal.
Lawyers for the House argue that their members clearly are harmed by the court-drawn map because the ruling takes the map drawing power out of the hands of state lawmakers and forces them to represent "unlawful districts." The House argues Herring is not intervening in the case to give his fellow Democrats the advantage in November elections.
A VPAP analysis of court drawn maps found that it would make it more difficult for Republicans to hold their 51-49 majority in the Virginia House during November elections.
"The Court should reject the attorney general’s extraordinary effort to turn redistricting litigation into a heads-I-win-tails-you lose proposition, in which an elected official can block the defense of an adverse decision that advantages his political party at the expense of the institutional prerogatives of the House," attorneys for the House write in court filings.
Lawyers for the challengers argue the House failed to agree on their own redrawing of the maps when the lower court gave them a chance. Plus, they write forcing lawmakers to run for re-election in different districts is part of their job.
"Even individual legislators suffer no cognizable harm under the divided constituencies theory, which amounts to the peculiar claim that Virginia’s representatives are injured through the 'labor' of representing new constituents," the challengers, who are aligned with democrats, write in court filings. "Representing constituents is, after all, their job.'
The U.S. Justice Department has been granted ten minutes of argument before SCOTUS. Justice officials argue that the House does not have standing to file the appeal, but if the justices decide they do, the lower court ruling should be thrown out.
The second key legal question in the case involves whether race was the main factor in drawing the lines in the 11 legislative districts ruled unconstitutional. The lower court ruled that Republican lawmakers unfairly packed black voters into some districts thus diluting their voting power and favoring GOP candidates in other districts.
Attorneys for the House said race was a factor in drawing the lines in 2011, but they said it is far from the only one considered. The House argues they made a "good faith" attempt to draw the lines fairly under the law given the time constraint placed on lawmakers then. In 2011, Virginia lawmakers received new census data in February and had only a few months to draw new maps, according to court filings.
Republican map drawers targeted a 55% black voter percentage floor in the 11 challenged districts, court filings said. Lawyers of the House argue that use of the percentage was not to dilute voting power but to ensure the majority-minority districts remained that way following census data.
"Any fair reading of the record confirms that race did not overwhelm or dwarf other considerations, but rather served as one factor alongside them," House lawyers write.
House lawyers point out that a majority of Democrats signed off on the 2011 maps, praising the "bipartisan" manner in which they were drawn. The legal challenge to the maps only came in 2014, after a Democrat won the Governor's race, House lawyers argue.
The voters challenging the maps say the 55% floor was used "across the board" in the 11 districts, even though those areas were very different. The challengers argue this resulted in a "pattern of racial sorting" that was "stark."
"Cities, towns, VTDs, and even a military base were divided with near uniformity along racial lines, with higher BVAP (black voting age population) areas moved to the Challenged Districts and lower BVAP areas moved to the non-challenged districts," the challengers write.
Republican leaders used certain districts as "donors" of black voters so that surrounding districts would achieve the 55% mark, the challengers argue.
Five of the 11 challenged district in this case are in Central Virginia:
- HD 63 – Del. Lashrecse Aird (D)
- HD 69 – Del. Betsy Carr (D)
- HD 70 – Del. Delores McQuinn (D)
- HD 71 – Del. Jeff Bourne (D)
- HD 74 – Del. Lamont Bagby (D)
Should the Supreme Court rule the House does not have standing, the court-drawn maps would stand. If SCOTUS says the House has standing, they would then debate whether race was the predominant factor in drawing the lines of the 11 challenged districts. Overturning the lower court ruling would mean Virginia would revert to the original 2011 maps.
If that scenario plays out, experts said a ruling would not come until May or June, which could impact the November elections.
The case this appeal is based off has bounced around the federal court system. The initial case filed by the challengers in 2014 was denied by the lower court initially. The challengers appealed the case to the Supreme Court, who ruled the lower court did not use the proper "holistic analysis" in a reviewing 11 challenged majority-minority districts. The case was then remanded back to the lower court, which lead to the 2018 ruling that the districts were unconstitutional. Republican House leaders filed the appeal to the Supreme Court after that.