This week, the U.S. Supreme Court issued its long-awaited decision in Virginia House of Delegates v. Bethune-Hill, a gerrymandering case. Justice Ginsberg essentially wrote that the Virginia House of Delegates was not allowed to bring the appeal.
Here is some background. The General Assembly is required by the Constitution of Virginia and the U.S. Constitution’s Fifth Amendment to redraw congressional and state legislative districts after each census. In 2011, the General Assembly held a special session. Republicans held the majority in the House of Delegates, Democrats controlled the state Senate and Republican Governor Bob McDonnell was in office.
Each chamber drew their own maps and incumbent members of Congress recommended the congressional maps. Governor McDonnell vetoed the first map drawn by the Democratic State Senate who then proposed a compromise map. The Governor then approved all three plans.
Over the last 10 years, the case law on voting rights issues has changed as the composition of the Supreme Court has changed. In the case of Shelby County v. Holder in 2013, the U.S. Supreme Court held that “pre-review” of all voting actions required by the Voting Rights Act of 1965 was no longer required in jurisdictions with a history of racial discrimination — such as Virginia — ostensibly because racial discrimination was no longer an issue. This opened the door to voter identification laws, precinct changes, voter roll purges and other actions by state and local governments, largely in the South over the last six years.
However, the flip side of Shelby County was that because racial discrimination was “not as pervasive” and that Voting Rights Act of 1965 had “solved” most of the problems it had sought to address, race could no longer be a predominant factor in drawing district lines. Following this new line of thinking, a three-judge panel threw out Virginia’s congressional district map in 2016 and Congressman Donald McEachin was elected to represent the new Fourth Congressional district.
More litigation ensued over the House of Delegates and a three-judge panel ultimately found that 11 districts were improperly drawn to achieve an impermissible 55 percent Black voting age population threshold. This required more than 30 seats to be redrawn in Hampton Roads, Southside Virginia and around Richmond, and the Virginia “House of Delegates” appealed the decision.
On Monday, the U.S. Supreme Court refused to consider the merits of the lower three-judge panel’s ruling and held that the Attorney General can represent the interests of Virginians in a redistricting case, but not one chamber of a bicameral legislative body. Ginsberg also wrote that possible partisan control of a legislative body is not the kind of “harm” that gives standing to bring a lawsuit, that it is a basic outcome of democracy. That basically ends the litigation.
However, the decision really ducked the important and most pressing issue — when does gerrymandering become so problematic that it denies voters their right to representation? Virginia’s congressional, legislative and local government districts are rife with partisan gerrymandering. The power of computers made this one of the most fundamental problems in American Democracy.
There are numerous scholars who have developed mathematical models to objectively measure the distortive effect of district maps, but the U.S. Supreme Court remains divided on whether such formulas can find support in Constitutional text such as the U.S. Constitution’s due process cause or the first amendment. So while this decision will make most Democrats happy, the fundamental problem remains unresolved.
The 2020 General Assembly will take a second vote on an amendment to the Constitution of Virginia to create a form of nonpartisan redistricting. If approved, voter approval will still be necessary and there are some statutory details that still require negotiation. I continue to have concerns about giving the Supreme Court of Virginia ultimate authority if stalemate occurs in the General Assembly given that that court has become dominated by Republican appointees in the last 20 years, could be dominated by another party in the future and more importantly, is not truly representative of Virginia ideologically and regionally. Northern Virginians are largely excluded today from Virginia’s appellate courts, a troubling development.
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