Case No.18-281 | E.D. Va.
Preview by Sean Lowry, Online Editor*
In Virginia House, the Court will re-examine a Virginia state electoral map for racial gerrymandering claims and hear new arguments about who has the standing to defend the map on appeal.
The initial controversy arose when voters challenged 12 new districts, drawn by the Republican-controlled state legislature following the 2010 census, as products of racial gerrymandering in violation of the Equal Protection Clause. A three-judge panel in the district court upheld all 12 districts, and the case was later granted certiorari, moving directly to the Supreme Court. (The Court has granted direct appeal in a number of redistricting cases.) In March 2017, the Court held that 11 of the districts had been upheld under the wrong legal standard and remanded the case to further evaluate those districts under the Court’s interpretation of relevant precedent. See Bethune-Hill v. Va. State Bd. of Elections, 137 S.Ct. 788 (2017). (The Court affirmed the district court’s upholding of one of the electoral district boundaries.) The majority opinion, written by former Justice Anthony Kennedy, said that relevant case law requires plaintiffs alleging racial gerrymandering to show, in a district-by-district manner, evidence that the Virginia legislature used race as a predominant factor in drawing the electoral map, overriding other options driven by race-neutral factors. See id. at 797–800. Upon remand, the lower court panel, in a 2-1 decision, concluded in June 2018 that minimum thresholds of black voter concentrations were a primary factor driving the construction of the districts. See Bethune-Hill v. Va. State Bd. of Elections, 326 F.Supp.3d 128 (E.D. Va. 2018). On behalf of the Republican-controlled House of Delegates, Speaker M. Kirkland Cox intervened in defense of the map, and petitioned the Court for direct appeal and review of the district court’s analysis.
In addition to arguments about the district court’s gerrymandering analysis, the Court asked to be briefed on a standing challenge introduced by Democratic Attorney General (“AG”) Mark Herring. AG Herring filed a motion to dismiss the House’s appeal to the Court on the basis that under Virginia law, the AG’s office, and not a single house of the Virginia legislature, is entitled to represent the commonwealth’s interest in litigation and decide whether (or not) to defend the electoral map on appeal. The House argues that it does have standing under conventional Article III standards (e.g., a concrete and particularized injury) and that Virginia law authorizes the House to defend state statutes. Additionally, both parties argue that precedent in Karcher v. May, 484 U.S. 72 (1987) supports their position on standing. In Karcher, the Court held that heads of the New Jersey state House and Senate lacked standing to defend a school prayer law because their tenure in the leadership had expired. Instead, the authority, under state law, to defend the state’s interest in defending the statute had passed to their successors. Whether or not the Court will decide to revisit the meaning of its decision in Karcher remains to be seen.
*Sean Lowry is a 2LE (Class of 2021) and Analyst in Public Finance at the Congressional Research Service (CRS). The views expressed are those of the author and are not necessarily those of the Library of Congress or CRS.