EIGHT years of legal bickering over gerrymandered legislative districts in the commonwealth has reached a once-unimaginable level of dysfunction.
A federal appeals court has ordered the Virginia General Assembly to redraw 11 House of Delegates districts in Richmond, Petersburg and Hampton Roads that were created in 2011 following the 2010 Census by Oct. 30, so that the new district lines are in place for the 2019 House elections.
That’s just one year before the 2020 Census, after which they would have to be drawn all over again.
A three-judge panel of the Fourth Circuit Court of Appeals ruled that African-American voters were deliberately “packed” into the 11 legislative majority-minority districts to dilute their votes in neighboring districts, in violation of the equal-protection clause of the 14th Amendment.
“Overwhelming evidence in this case shows that, contrary to this constitutional mandate, the state has sorted voters into districts based on the color of their skin,” Appellate Judge Barbara Milano Keenan wrote for the 2-1 majority.
Keenan discredited testimony by Del. Chris Jones, R-Suffolk, who was in charge of the 2011 redistricting, that the current lines were drawn for predominantly political, not racial, reasons. Citing statistical evidence by several experts, “race predominated over traditional districting factors in the construction of the 11 remaining challenged districts,” she countered, concluding that the House violated the equal protection clause by “using race as a proxy for political affiliation.”
But lawyers representing current House Speaker Kirk Cox, R-Colonial Heights, argued that the General Assembly was trying to comply with the Voting Rights Act of 1965 when it drew the 2011 legislative district lines. “The court in this case committed plain legal error by determining that a 55% BVAP [black voting age population] threshold was not narrowly tailored to achieve compliance with Section 5 of the Voting Rights Act,” their response stated.
The House requested a suspension of the lower court order so it can appeal the decision back to the U.S. Supreme Court—which just last year sent Virginia’s redistricting dispute back to the lower court. The House argues that in ruling against its use of a 55 percent African-American voter threshold in the challenged districts, it is being put “in the untenable position of violating either one law or another.”
“It will be impossible for the legislature, or anyone, to draw a remedial map that passes this court’s muster. This court has left the House of Delegates in a Catch-22 between Section 5 [of the Voting Rights Act] and Fourteenth Amendment burdens,” Katherine McKnight, an attorney with BakerHostetler who is defending the House, wrote, adding that the appellate court’s ruling “makes it legally impossible to thread that needle.”
She also argued that the court ignored “objective evidence of neutral redistricting decisions … in favor of theoretical and post-hoc expert opinions about motive.”
“The Order could leave infinite time to redraw a map, as far away from an election as humanly possible, and it would still cause irreparable injury because the House has no legal way to comply with both the Constitution and federal law per this court’s order.”
If you’re confused, join the club.
Virginia has a long and sordid history of trying to prevent African- Americans from voting, so court challenges to partisan gerrymandering schemes are necessary to prevent the same thing from ever happening again. But there’s got to be some time limit to contest the results of legislative redistricting.
The current map was drawn eight years ago, voted for by the General Assembly, including every member of the House’s Black Caucus, signed by then-Republican Gov. Bob McDonnell, and approved by the U.S. Department of Justice under Democratic President Barack Obama.
By allowing this never-ending litigation, which basically questions the legitimacy of the past four legislative elections, the courts are causing incalculable damage to the commonwealth’s electoral system and all Virginia voters.
That said, before the General Assembly redraws any boundaries, it needs clear and unambiguous guidance from the U.S. Supreme Court on exactly how to do so while complying with both the Voting Rights Act, which requires a consideration of race to avoid “cracking” [dispersing minority voters into several districts to dilute their voting strength] and “packing” [concentrating minority voters into as few districts as possible], and the 14th Amendment, which prohibits it.