Outside the Beltway

Federal Court Voids Virginia Congressional Map

A Federal Court has given legislators in Richmond a complicated job.

Doug Mataconis · Wednesday, October 8, 2014 · 14 comments

Late yesterday, a Federal Judge in Richmond struck down the Congressional map drawn by Virginia legislators in the wake of the 2010 Census largely because the map places a large number of African-Americans in a single district in order to ensure that there would be at least one African-American Member of Congress from the state:

A panel of federal judges on Tuesday declared Virginia’s congressional maps unconstitutional because they concentrate African American voters into a single district at the expense of their influence elsewhere.

The decision, handed down in the U.S. District Court for the Eastern District of Virginia, orders the Virginia General Assembly to draw up new congressional maps by April — potentially launching a frenzied and highly political battle for survival within Virginia’s congressional delegation.

The order delivered another victory for Democratic plaintiffs hoping to break up black-majority districts, which they say have been drawn by Republicans who have used the Voting Rights Act to dilute the influence of minority voters.

A similar case in Alabama in which Republicans prevailed will be heard by the Supreme Court this term.

“We’re obviously thrilled with the results,” said Marc Elias, a lawyer on the Virginia case who represented two voters from the district where the unconstitutional redistricting took place. “The Republicans engaged in impermissible racial gerrymandering in a cynical effort to gain seats. . . . We look forward to the state doing a new redistricting to comply with the court’s orders.”

 Elias said that if Virginia does not appeal, its leaders will have to go “back to the drawing board” to draw their electoral boundaries.

Judge Robert E. Payne wrote in a dissenting option that incumbent protection — rather than race — motivated the redistricting, a practice which is legal.

The case can be appealed directly to the Supreme Court, an unusual legal quirk of the matter because it was decided by a three-judge panel, but whether that will happen remains unclear. Michael Kelly, a spokesman for Attorney General Mark R. Herring (D), said state lawyers were “reviewing the decision and assessing its impact and how best to move forward.” The attorney general’s office, in consultation with the Department of Elections, will decide whether to appeal, he said.

The court’s decision allows the current maps to remain in place for next month’s elections, and it focuses on the state’s lone black-majority district, the 3rd Congressional District, which stretches from Richmond to Hampton Roads and is now represented by Robert C. “Bobby” Scott (D).

But there was broad agreement Tuesday that, if the decision is not appealed, its impact could ripple across several districts in the state. Dave Wasserman of the Cook Political Report tweeted this on Tuesday: “Depending on how VA’s map is redrawn for 2016, the big loser here could be #VA04 Rep. Randy Forbes (R).”

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The case can be appealed directly to the Supreme Court, an unusual legal quirk of the matter because it was decided by a three-judge panel, but whether that will happen remains unclear. Michael Kelly, a spokesman for Attorney General Mark R. Herring (D), said state lawyers were “reviewing the decision and assessing its impact and how best to move forward.” The attorney general’s office, in consultation with the Department of Elections, will decide whether to appeal, he said.

The court’s decision allows the current maps to remain in place for next month’s elections, and it focuses on the state’s lone black-majority district, the 3rd Congressional District, which stretches from Richmond to Hampton Roads and is now represented by Robert C. “Bobby” Scott (D).

But there was broad agreement Tuesday that, if the decision is not appealed, its impact could ripple across several districts in the state. Dave Wasserman of the Cook Political Report tweeted this on Tuesday: “Depending on how VA’s map is redrawn for 2016, the big loser here could be #VA04 Rep. Randy Forbes (R).”

Although the Voting Rights Act was meant in part to ensure elected representation for minorities, Democrats have argued in recent years that Republicans have used the act and its provisions to justify diminishing black — and Democratic — influence outside of the majority-minority districts.

Such arguments have sometimes created tensions between minority groups and the Democrats they most often favor. Black incumbents especially want to make sure that districts remain safe for reelection, while other Democrats want minority voters more dispersed to increase the party’s chances of winning more races.

Loyla University Law School Professor Justin Levitt comments:

I’ve already seen some confusion about this: the decision doesn’t depend on Shelby County.  Indeed, as I read it, the decision would have been exactly the the same if Shelby County came out differently — or hadn’t been decided at all.

Instead, what the court found is that Virginia’s deployment of race in the redistricting process was hamhanded rather than nuanced, and therefore unconstitutional.  That is, in purportedly attempting to comply with section 5, Virginia focused on a demographic target alone, without any attention to the actual “effective exercise of the electoral franchise” on the ground.  That kind of shorthand doesn’t fly, not least because it shows exactly the sort of essentialism section 5 was designed to combat.

Unfortunately, Virginia’s mistake is all too common this cycle.  As Rick says, this issue is also involved in the Alabama case now up before the Supreme Court.  But it’s not just Alabama.  Versions of this same problem have cropped up in California, Florida, North Carolina, South Carolina, and Texas — at least.

I’ve reviewed each of these cases, and the governing law — arriving at essentially the same conclusion as the court in Virginia — in this new law review piece.

As the article above hints, this is not an easy issue to resolve. On the one side, there is the desire, indeed given the way the Voting Rights Act the mandate, to given minorities the opportunity to have representation of their own in Congress rather than seeing their votes disbursed among a number of districts where they end up being in the political and racial minority. In the past, this was a common method that was used, especially in the South, to dilute minority voting and political power in order to prevent the election of African-Americans to political office. Over and above the issues that were at stake in the Shelby County case, which isn’t really applicable in this case for several reasons, the Voting Rights Act has been used to stop this process and to create so-called “majority-minority” districts, predominantly in urban areas such as the ones that make of the majority of Virginia’s 3rd Congressional District. One side effect of creating these districts, of course, is that when you draw borders based on racial/political considerations such as this, you end up diluting minority voters in other districts which, in the case of Virginia and many Southern states, generally ends up mean that districts outside of the “majority minority” area become more heavily Republican, and in some cases more dominated by Republicans who tend to be more conservative than they may otherwise be if they had to represent a district that had a larger minority presence. One alternative, of course, would be to abandon the entire idea of “majority-minority” districts, but that would likely result in fewer African-American, and in some states Latino, representatives in state legislatures and in Congress.

While the ruling only really focuses on one district, if this ruling stands it would have an impact on virtually the entirety of Virginia’s Congressional redistricting plan. As it was, that plan was difficult to put together due in no small part to the need to comply with the VRA and the fact that, at the time it was being drafted, there was a delicate political balance in Richmond that required Republicans and Democrats to come to some kind of agreement. In the end, the map that was passed into law ended up being one that was very favorable toward incumbents of both parties, including Representative Scott in the 3rd District, although it did result in a few oddly shaped Districts. My Congressional District, for example, stretches from the farmlands along the Virginia-North Carolina border and then heads over 200 miles northward along Route 29 until it stops just south of Leesburg, a suburb of Washington, D.C. Granted, much of this area is sparsely populated farmland, and it isn’t nearly as bizarrely drawn as some Congressional Districts in other parts of the country. Nonetheless, when I see districts like this it makes me wonder just how “representative” the person elected can be given the fact that the interests of the people in such a large district in, arguably, three different parts of the state, are not necessarily identical. That issue isn’t before the Court, of course, but it’s related to the extent that it points out the problems that arise when redistricting remains a process controlled by political considerations, as it is in most states in the country, than one that is less partisan and aimed at creating districts that, well, make more sense.

Where Virginia goes from here is unclear. By its own language, this opinion will have no impact on the November elections, which is really the only practical result there because it would be impossible to redraw Congressional maps in 27 days, and the Commonwealth has what is likely a soft deadline of submitting new maps in April of next year. If it appeals the case to the Supreme Court, then the appeal will likely be held pending the Court’s decision in that Alabama case. If it doesn’t appeal, then Virginia’s legislature, which is controlled by the Republicans, and Virginia’s Democratic Governor will have to come up with some kind of solution. It’s entirely possible, though, that the issue may not be resolved here until after the Supreme Court has handed down its decision, and then they’ll have to start all over again.

Here’s the opinion:

Page Et Al v Virginia SBOE Et Al by Doug Mataconis