Supreme Court Hears Virginia’s Redistricting Case

Before we begin: All redistricting is gerrymandering, the problem is determining how much gerrymandering is too much gerrymandering.

The Supreme Court heard oral arguments Monday morning on Virginia’s House of Delegates redistricting case. As always, predictions based on the questions asked by Supreme Court Justices are nearly impossible to make with any certainty.

The case is about the map drawn by the House in 2011. At the time it was made, the map received bi-partisan support and, in accordance with the Voting Rights Act of 1965, was approved by the Justice Department. Then state senator Mark Herring voted for the map.

But now Attorney General Mark Herring and his Democrat friends are against the map they voted for. What changed?

Democrats now claim that the map is racially gerrymandered. But, and this is a huge but, the Voting Rights Act of 1965 specifically calls for racially gerrymandered districts so black voters will have a fair chance to elect who they want. Again, we are left to wrestle with determining how much racial gerrymandering is too much gerrymandering.

The 2011 map was created by and voted on by Virginia’s elected officials. The courts need not wander into this realm. Every action taken was consistent with Virginia law and once again, in accordance with the Voting Rights Act of 1965, approved by the Justice Department.

But Democrats changed their mind. They filed suit. A district court first said the map was ok, then an appeal to the Supreme Court resulted in the district court reexamining the lines of all but one of the originally challenged districts, 11 in all. That court then said new lines must be drawn. And the Democrat Virginia elected as Attorney General refused to represent Virginia in an appeal.

At the Supreme Court Herring called the lines “unconstitutional.” Remember, he voted in favor of those lines in 2011. How did they magically become “unconstitutional” since then?

This case may hinge on standing. Herring’s refusal to represent Virginia in the appeal may stop the House of Delegates, who took up the appeal, from receiving an opinion in this case.

From the SCOTUS Blog

Much of today’s oral argument was devoted to a threshold question: whether the legislature has a legal right, known as “standing,” to appeal the district court’s decision to the Supreme Court in the first place. Arguing for the House of Delegates, attorney Paul Clement had several different arrows in his quiver. First, he argued, the House of Delegates and its day-to-day operations were themselves affected by the district court’s ruling striking down the 2011 map. The districts are not simply about elections, Clement insisted; legislators are also identified by where they come from – for example, the “gentle lady from Norfolk.”

Justice Ruth Bader Ginsburg was skeptical. Changes in district maps are frequent occurrences, she pointed out. In fact, they happen every time there is a new census.

Justice Sonia Sotomayor was also dubious. She worried aloud that if the House of Delegates were allowed to appeal the district court’s decision in this case, it would mean that its counterparts in other state legislatures would be able to do the same in the future – even if, perhaps, the state’s attorney general might have a different position. And could individual members of the state legislature also appeal? Sotomayor asked Clement. It would be a “radical new step,” Sotomayor concluded.

Clement offered an alternative theory: The House of Delegates also has a right to appeal the decision on behalf of Virginia, even though the state’s attorney general insists that only he has the authority to do so. Clement stressed that the House of Delegates – with the blessing of state officials – had defended the map during the case’s first trip to the Supreme Court. Indeed, he observed, the justices even used the phrase “the state” to refer to the legislature then, because the House of Delegates was the only defender appearing in the Supreme Court.

Justice Samuel Alito suggested to Clement that he would be “very uncomfortable” trying to decide whether, under Virginia law, the House of Delegates can represent the state in court proceedings, or whether that is a role reserved for the state’s attorney general. Alito proposed that the justices should instead ask the Virginia Supreme Court to weigh in on this question of state law, but his colleagues did not show much enthusiasm for that option.

Justice Elena Kagan asked Clement whether, even if he is correct (and Kagan acknowledged that he seems to be) that Virginia’s attorney general previously was happy to have the House of Delegates “do the work” and represent the state in defending the districts, that means that the attorney general has permanently delegated the authority to represent the state to the legislature.

“Yes,” Clement responded.

Sotomayor criticized Clement’s response as a “pretty extreme statement,” but Clement held firm, calling it a consequence of the state attorney general’s choice.

This is what happens when you elect a hyper-partisan as Attorney General.

Mark Herring has taken the office of Attorney General and turned into such a partisan office that he should be disbarred.

The court’s opinion could have immediate effects. If the justices rule in favor of the district court and the new lines stay then not much changes right away, but if the Court rules in favor of the House then the June 11th primary may have to be postponed.


Virginia House Speaker Kirk Cox acknowledged after the arguments that if Republicans win on all issues, the June primaries would likely need to be delayed so that voters can be reassigned to the original districts.

“You just deal with it,” Cox said. “We didn’t create that confusion — they created that confusion.”

Whatever happens a new census will be conducted in 2020 so new lines will be drawn in 2021. And maybe we will have to deal with more court cases. But either way we will be left with the principle that all redistricting is gerrymandering and the question of how much gerrymandering is too much gerrymandering will continue to be debated in perpetuity.