Virginia Attorney General Versus Virginia House of Delegates in Latest SCOTUS Redistricting Challenge

In the latest twist in Virginia’s redistricting saga, Virginia House of Delegates v. Bethune-Hill, the Supreme Court must resolve a showdown between the Virginia House of Delegates and the Virginia Attorney General regarding who may litigate the case, among many other issues.

Plaintiffs, a number of Virginia voters, allege that the Virginia legislature engaged in unconstitutional racial gerrymandering when it constructed 12 majority-black Virginia House of Delegates districts during the 2011 redistricting cycle. More specifically, the plaintiffs argue that requiring each of these districts to contain a minimum 55% black voting age population (BVAP) was unnecessary for black voters to elect their preferred candidates per the Voting Rights Act. Plaintiffs claim this minimum was set to reduce the influence of black voters in other districts.

Most recently in the litigation two of the three judges in a three-judge panel ruled against Virginia’s redistricting plan. The Virginia attorney general concluded an appeal to the U.S. Supreme Court “would not be in the best interest of the Commonwealth or its citizens.” The Virginia House of Delegates has appealed the decision to the Supreme Court. The Virginia Attorney General claims it has no standing to appeal.

The Virginia Attorney General acknowledges that in Karcher v. May (1987) the Supreme Court concluded that the presiding officers of the two chambers of New Jersey’s state legislature “had [1] authority under state law [2] to represent the State’s interests” in litigation. But, according to the Virginia Attorney General, the Virginia House of Delegates can’t satisfy either half of the Karcher test. It neither has claimed to represent the interests of the state nor can it demonstrate that state law “authorizes it to speak for (much less appeal on behalf of) Virginia in this matter.”

The Virginia House of Delegates counters that it has a “concrete and particularized interest in legislation establishing its own composition that was injured by the court’s injunction, and the injury is redressible on appeal” and that state legislatures should not be “at the mercy of state executives, often of different political parties, in redistricting litigation.”

Beyond standing, the Virginia House of Delegates raises six issues on appeal making it difficult to predict what the Supreme Court will focus on if it reaches the merits of this case.

To prove a racial gerrymander in violation of the Constitution’s Fourteenth Amendment plaintiffs must show that race predominated over traditional redistricting criteria. If it does the state must show that the use of race was narrowly tailored to achieve a compelling state interest. Courts assume that complying with the Voting Rights Act, which is why the legislature claims it required a 55% BVAP in these districts, is a compelling state interest.

A majority of a three-judge panel previously concluded that race wasn’t a predominate factor in drawing 11 of the 12 districts because “the legislature’s use of race was [not] in ‘actual conflict’ with traditional, race-neutral districting criteria.” The Supreme Court disagreed that showing an “actual conflict” was necessary for race to predominate and ordered the three-judge panel to reconsider its predominance analysis.

In a trial held after the Supreme Court’s first ruling the House of Delegate conceded that 55% BVAP was a fixed not an “aspirational” target. A majority of the three-judge panel concluded race predominated in drawing district lines because: “Bound by the 55% BVAP requirement, the [House of Delegates has] not produced a consistent theory otherwise to explain the apparently race-based boundaries of the 11 remaining challenged districts.”

The panel likewise found no narrow tailoring because “the legislature did not undertake any individualized functional analysis in any of the 11 remaining challenged districts to provide ‘good reasons to believe’ that the 55% threshold was appropriate.”