Supreme Court may decide against Va. Republicans in redistricting fight
Supreme Court may decide against Va. Republicans in redistricting fight
(about 7 hours later)
The Supreme Court on Monday seemed likely to leave in place a lower court’s decision that Virginia improperly considered race when drawing congressional districts.
The Supreme Court on Monday seemed likely to leave in place a lower court’s decision that redraws some of Virginia’s congressional districts and creates the possibility of electing a second black U.S. representative from the commonwealth.
Operating without the late Justice Antonin Scalia, it would require only four members of the court to agree with a judicial panel that the Republican-led legislature improperly packed African American voters into the 3rd Congressional District, which is represented by the state’s lone black congressman, Rep. Robert C. “Bobby” Scott, a Democrat.
The justices seemed concerned that Virginia’s Republican-led legislature had packed African American voters into the Hampton Roads-based 3rd Congressional District, which is represented by the state’s lone black congressman, Rep. Robert C. “Bobby” Scott, a Democrat. As a result, the surrounding districts became safer for white Republican candidates.
The lower court said the map violated the admonition that race not be the predominant factor in drawing legislative districts.
The court’s liberal justices also questioned whether former and current Republican congressmen had the legal right — which is called standing — to challenge the lower court’s redrawing of the map in a way that hurts some incumbents and encourages a black candidate to run in District 4.
Washington lawyer Michael A. Carvin, representing Republican congressmen whose districts have been changed by the lower court, said the legislature’s primary objectives were to protect incumbents and maintain the core of existing districts. Both are acceptable motives by Supreme Court precedent.
Justice Sonia Sotomayor told Washington lawyer Michael A. Carvin that his clients were asking for a rule that says “every change that affects an incumbent gives the incumbent the right to challenge the line of change . . . an incumbency-protection standing rule.”
But the court’s four liberals challenged that. Justice Elena Kagan said relying on race cannot be condoned even if there were benefits such as protecting incumbents.
Because of the death of Justice Antonin Scalia, the court is operating with only eight members. Even a tie would uphold the lower court decision, which has scrambled Virginia politics and could mean a change in the state’s congressional delegation.
They also questioned whether the congressmen have the legal standing to challenge the lower court’s decision to redraw the maps, even if their reelection chances are harmed by the changes.
The hearing lasted more than an hour and displayed the intricacies and high political stakes that come when states divide their residents into congressional districts. Carvin generally represents Republicans and his adversary and fellow Washington lawyer Marc E. Elias represents Democrats, and their Virginia battle is being replicated in courts around the country.
Last year’s lower court ruling created a second district designed for a black candidate. Voters in the state’s congressional primary go to the polls in June — about when the justices would seem likely to rule on this new plan.
Under the Supreme Court’s somewhat hazy guidance and the Voting Rights Act, state lawmakers must consider the race of those who populate each district to ensure minorities have a fair shot at being represented. But lawmakers fail if they let race become the predominant issue in drawing the lines.
The case presents what has become familiar litigation over how states divide up their residents into congressional districts, which is essential to the country’s politics and crucial to political parties.
The three federal judges who examined the commonwealth’s plan said it veered from partisan gerrymandering aimed at protecting incumbents — for which the Supreme Court has shown a high tolerance — into racial gerrymandering, which the Constitution forbids.
But state lawmakers charged with the task compare it to walking a tightrope, or crossing a minefield, or preparing a meal for Goldilocks.
The judges gave the legislature a chance to redraw the map, but legislators were unable to do so. So the panel imposed a map of its own. In a separate proceeding, the Supreme Court refused to stay that plan, and voters in June will go to the polls to elect members of Congress from the revised districts.
Under the Supreme Court’s somewhat hazy guidance, state lawmakers must consider the race of those who populate each district to ensure minorities have a fair shot at being represented. But lawmakers fail if they let race become the predominant issue in drawing the lines.
Carvin told the court that when redrawing the map after the 2010 Census, the Virginia General Assembly was motivated by protecting incumbents — the state’s congressional delegation consisted of eight Republicans and three Democrats — and preserving core areas of existing districts.
“You can’t let the porridge be too hot, you can’t let the porridge be too cold,” said former Virginia delegate Bill Janis (R-Glen Allen), who devised the commonwealth’s congressional map. “But they won’t tell us what temperature the porridge has to be.”
It was a success, he said. “Every incumbent was reelected.”
[Judges impose new congressional map in Virginia]
But former state delegate Bill Janis (R-Glen Allen), who devised the commonwealth’s congressional map, testified that he did not consider partisan implications of his plan. He said he decided the black voting age population in Scott’s district should be increased to at least 55 percent to comply with the Voting Rights Act.
Federal judges said the commonwealth’s plan veered from partisan gerrymandering aimed at protecting incumbents — for which the Supreme Court has shown a high tolerance — into racial gerrymandering, which the Constitution forbids.
“That’s what the drafter of the plan said,” said Justice Ruth Bader Ginsburg. “He didn’t take into account partisan performance.”
In a sense, said Nathaniel Persily, an election-law expert at Stanford Law School, “the Voting Rights Act is on a collision course with the Constitution.”
Chief Justice John G. Roberts Jr. said that did not mean that the entire legislature was motivated by racial decision-making. “How do you show what the motive of the legislature was?” he asked.
The questions for Virginia and other states are, he said, “how much can you think about race in construction of districts, and is the use of race in aid of partisan gerrymandering problematic?”
But Justice Anthony M. Kennedy was concerned. Even if politics motivates the line-drawing, Kennedy said, “May we then use race to move people from one district to another, simply because that’s the easiest way to do it? We know that this is a race that votes strongly for a particular party, so we can use race for this ultimate neutral purpose?”
The line is increasingly elusive, especially across the South, where black residents are presumed to be Democrats and whites are increasingly Republican.
Carvin said no, but that race and politics in this case were “co-extensive.”
Because of the high stakes, redistricting plans in more than three-quarters of the states have been challenged in court.
Justice Elena Kagan said that did not matter. “Does the fact that it also has political benefits, does that insulate these line drawers from what you would think is the obvious conclusion, which is this is unconstitutional conduct?” she asked.
But wherever the line is, Virginia’s Republican-led General Assembly crossed it, according to an amicus brief to the Supreme Court filed by the Campaign Legal Center and League of Women Voters, among others. The legislature’s plan “sanctions the impermissible use of race as a proxy to achieve partisan gains,” the groups wrote.
Representing Virginia, state Solicitor General Stuart A. Raphael said the commonwealth originally defended the legislature’s work, but now believes the decision of the lower court should be accepted.
Janis, along with current and past Republican congressmen who challenged the lower court’s decision, contends that the plan adopted after the 2010 Census simply preserved the status quo by retaining the cores of the state’s existing congressional districts. To meet obligations under the Voting Rights Act to protect minority-majority districts, it increased the percentage of the black voting-age population in the 3rd district in Southeastern Virginia, long represented by Scott.
“Did anything else happen between the time when your office took the prior position and your appearance here today?” asked Justice Samuel A. Alito Jr., to laughter.
“Core preservation and incumbency protection were . . . the most important neutral principles and consistently applied to all districts,” Carvin, representing the Republicans, told the Supreme Court in a brief.
His obvious reference was that the state’s governor and attorney general are now Democrats, where Republicans previously held the jobs.
The redrawing of Scott’s district “was neither race-based nor a departure from neutral principles,” Carvin wrote.
Although Raphael supported the lower court, he also said that, on the question of standing, Rep. J. Randy Forbes (R), who currently represents District 4, should be able to challenge the lower court’s decision to radically change his district. Forbes currently has decided to run for the seat being vacated by Rep. Scott Rigell (R).
But Democrats said that just a look at the “bizarrely shaped district” is enough to show other motives.
But Elias, and Deputy Solicitor General Ian H. Gershengorn, representing the federal government, said he should not. They said Kagan and other justices were correct to question whether a member of Congress has a legally recognized right to challenge unfavorable changes to his district.
The district started north of Richmond, slid down the north shore of the James River, jumped over James City and formed a horseshoe around Newport News. That was only the beginning, as it included some towns and skipped others, until the black voting-age population of the district reached 56 percent.
“Under the American system, voters choose candidates,” said Elias. “They choose their elected officials. It is not the other way around.”
Two residents of the district, Gloria Personhuballah and James Farkas, filed suit. They said the Republican-controlled General Assembly was not protecting Scott, who won his last race with more than 80 percent of the vote. Instead, they charged, legislators were making it easier to elect whites in surrounding areas by packing African Americans into Scott’s district.
The case is Wittman v. Personhuballah.
Drawing legislative and congressional districts is key to a party’s continued dominance in a state. Republicans controlled Virginia when it redrew congressional and legislative maps after the 2010 Census. The party still controls the General Assembly, and eight of its 11 members of Congress are Republicans. This is in a state that hasn’t elected a Republican to statewide office since 2009, where both U.S. senators are Democrats and where voters twice chose President Obama.
The judicial panel, on a 2 to 1 vote, found fault with the General Assembly’s plan because it required that at least 55 percent of the voting-age population in Scott’s district be black. The prevailing judges said there was no evidence that such a high percentage was needed to comply with the Voting Rights Act and that setting this figure was contrary to a Supreme Court decision last term that sided with challengers to Alabama’s legislative redistricting.
[Supreme Court sends Alabama redistricting plan back for more work]
The Supreme Court’s 5 to 4 ruling in the Alabama case said legislatures should not set arbitrary minority population goals for districts but instead look at what makeup is necessary to preserve the minority’s ability to elect a candidate of its choice.
This decision is one of several reasons to think Virginia Republicans have an uphill battle at the Supreme Court.
For one, there is a question about whether they should even be there. The Obama administration, backing Personhuballah and Farkas, says that because Virginia did not appeal the lower court’s decision, it should stand. The Republican lawmakers do not have standing to challenge the ruling simply because it changes their districts, Solicitor General Donald B. Verrilli Jr. told the court in a brief.
The congressmen claim they are harmed because a new plan “will move ‘unfavorable Democratic voters’ into the districts they represent, thereby decreasing their chances of reelection,” Verrilli’s brief states. The court should “reaffirm that voters in our democratic system choose their representatives — not the other way around.”
Another bad sign for the challengers is that the justices turned down Carvin’s request to put a hold on the lower court’s plan to impose a new congressional map. The court’s action followed the General Assembly’s failure to provide its own remedy. Carvin argued that it would be wrong to allow the primary election to go forward when there is a possibility the new districts would be thrown out.
The new map shows changes in line-drawing can have a dramatic impact on a state’s politics.
The judges’ plan drastically reduced the number of black voters in Scott’s district, which is still considered safe for him. It increased the number of black voters in the 4th district, which is represented by Rep. J. Randy Forbes (R).
So Forbes announced that he will instead run for the 2nd district seat being vacated by Rep. Scott Rigell (R).
The newly drawn 4th district is a better fit for state Sen. A. Donald McEachin (D-Henrico), an African American who is chairman of the Senate Democratic Caucus and ran for attorney general in 2001. McEachin filed paperwork to run for the seat and wasted no time in kicking off his campaign three days after the legislative session adjourned.
If the Supreme Court upholds the lower court’s decision — and even a tie among the eight justices would do that — law professor Persily said Virginia might provide a real-life answer to theoretical musings about how changing district lines affects results.
“The election is going to prove who’s right,” he said.
