Virginia House Lacks Standing to Defend Redistricting Plan

Does one branch of a state legislature have “standing” to litigate a redistricting case? Not unless state law says so the Supreme Court ruled.    

More technically, in Virginia House of Delegates v. Golden Bethune-Hill, the Supreme Court held 5-4 that the Virginia House of Delegates lacks standing to appeal a ruling striking down Virginia’s redistricting plan because Virginia law does not allow it to displace the Attorney General and it is only a single chamber of a bicameral legislature.

Voters sued a number of Virginia state agencies and elected officials over its state redistricting plan following the 2010 census. The Virginia House of Delegates intervened to defend the redistricting plan (but wasn’t a party who must have standing). After losing before a three-judge court in 2018 the Virginia Attorney General decided not to appeal the case. The Virginia House wanted to defend the plan and keep litigating the case.

The Supreme Court held that it lacked standing to do so. To have standing a person or entity must demonstrate “(1) a concrete and particularized injury, that (2) is fairly traceable to the challenged conduct, and (3) is likely to be redressed by a favorable decision.”

The House first claimed it had standing to act as the state’s agent in litigation. Justice Ginsburg, writing for the majority, disagreed because “[a]uthority and responsibility for representing the State’s interests in civil litigation, Virginia law prescribes, rest exclusively with the State’s Attorney General.” Not all states take this position. Indiana, for example, allows its House and Senate to hire lawyers to defend its redistricting plan. The Virginia House also never purported to represent the state’s interests in the litigation.

The House next claimed that even if it lacked standing to appeal as the state’s agent it had standing “in its own right.” The Court’s majority responded:  “This Court has never held that a judicial decision invalidating a state law as unconstitutional inflicts a discrete, cognizable injury on each organ of government that participated in the law’s passage. The Court’s precedent thus lends no support for the notion that one House of a bicameral legislature, resting solely on its role in the legislative process, may appeal on its own behalf a judgment invalidating a state enactment.”    

The dissent would have found standing for the Virginia House relying on Sixty-seventh Minnesota State Senate v. Beens (1972), where the Court allowed the Minnesota Senate to challenge a court order reducing the Senate’s size from 67 to 35 members. According to Justice Ginsburg, Beens predated Supreme Court cases holding that “intervenor status alone is insufficient to establish standing to appeal.” Regardless, according to the majority, “Cutting the size of a legislative chamber in half would necessarily alter its day-to-day operations. Among other things, leadership selection, committee structures, and voting rules would likely require alteration.  By contrast, although redrawing district lines indeed may affect the membership of the chamber, the House as an institution has no cognizable interest in the identity of its members.”