Politics, Not Race, Dominated Va. Redistricting, SCOTUS Told

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By Kimberly Strawbridge Robinson

March 21 — A group of current and former Republican members of Congress asked the U.S. Supreme Court to reinstate Virginia's congressional voting map at oral argument March 21.

But it wasn't clear that those members have standing to defend the state maps.

Members of Congress don't have a legally protected right to pick their constituents, Marc E. Elias, of Perkins Coie LLC, Washington, said on behalf of voters who originally challenged the now-defunct maps. It's supposed to be the other way around: voters choose their representatives, he said.

However, Michael A. Carvin, of Jones Day, Washington, who represented the members of Congress, said that was a “lovely slogan.”

What's at issue here, however, is whether state legislatures get to choose the districts that voters are in, or if that's up to the federal judiciary, Carvin said.

Here, Virginia's map for choosing members of the U.S. House of Representatives was struck down because it unconstitutionally used race to determine the district lines, a three-judge panel in the U.S. District Court for the Eastern District of Virginia said.

Harmless Use of Race?

It wasn't race, but politics that determined the district lines here, Carvin said.

That's an important distinction because while the Supreme Court has been active in racial gerrymandering claims, it has so far steered clear of political gerrymandering claims, saying that it isn't able to effectively police such activity.

Here, race and politics are coextensive, Carvin said. Because Virginia would have come up with the same plan no matter if race or politics predominated, the lower court shouldn't have struck down the legislatively enacted plan, he said.

That sounds like you are creating a harmless error rule for racial gerrymandering, Justice Elena Kagan said. The court has never adopted a harmless error rule for racial discrimination, she said.

Drafters always consider race, Carvin said. It's required under the Voting Rights Act, he noted.

Elias acknowledged that mere desire to comply with the VRA wouldn't doom the redistricting process. But when you mechanically use race in a way that isn't grounded in the VRA, that's unconstitutional, he said.

That's what happened here, Elias said. Even though Virginia said it intended to protect the state's only black Congressman, that Congressman didn't need additional protection, he said.

That Congressman was elected before the redrawn map with more than 70 percent of the vote, Elias said. Under the new map, it was over 80 percent, he said.

Legislative Intent?

But how can you determine what a group of legislators intended to do, Chief Justice John G. Roberts Jr. asked repeatedly.

You can look at the effects of any remedial plan, Carvin suggested. Here, the remedial plan put in place by the Eastern District of Virginia converted one district from a “toss-up district” with a Republican incumbent into a solidly Democratic district,” he said.

Because the remedial plan isn't as helpful to Republicans as the legislatively enacted one, it demonstrates that politics—not race—was the predominate factor in drawing the legislative plan, Carvin said.

But the sole drafter of the new map specifically said that he wasn't looking at partisan performance, Justice Ruth Bader Ginsburg said.

While it can be hard to sometimes parse legislative intent, it isn't hard here because there was only one drafter, Virginia Solicitor General Stuart A. Raphael, Richmond, Va., said.

Although the state originally defended the legislature's plan in the lower court under a Republican administration, it isn't doing so on appeal now that Democrats hold the governor's and attorney general's seats. The state is still a party to the appeal, however.

Shaky Ground

Some of the legislators voting for the plan might not have cared what the lone drafter thought, Roberts said.

So when race and politics are coextensive, how do you know which one predominated, he asked. Partisanship is usually a high priority of politicians, Roberts said.

In such a mixed-motives case, the challengers of the map are usually required to draw a new map that can meet the partisan goals, without the focus on race, Roberts said. The challengers here, however, weren't put to that task, he said.

“I, at least, would feel on much more solid ground if the plaintiffs had been put to the test of saying, show us,” Roberts said.

Hijacking Process?

Regardless, the lower court's decision may stand if the Supreme Court decides the members of Congress appealing that judgment don't have standing.

The strongest case for standing here is a Congressman that switched which district he was running in as a result of the remedial plan put in place by the district court, Justice Sonia Sotomayor said.

Roberts suggested that was a pretty severe injury. “The future of his political career that he's had for 16 years,” is at stake, he said.

But because redrawing one district has an effect on virtually every other district, such a standing rule would open up the courthouse to almost every member of Congress, Justice Stephen G. Breyer said. That would be a “mess,” he added.

A member of Congress would only have standing if the new map harmed their chances for reelection, Carvin said.

But not every injury opens up the courthouse doors, Elias said.

In addition to being harmed, you have to assert a legally recognized interest, Kagan said. Being reelected isn't a legally recognized right, she said.

The right being asserted isn't the right to be elected, it's the right not to have the federal judiciary hijack the redistricting process, Carvin said.

Or as Justice Samuel A. Alito Jr. put it, it's the right to run in a district that was lawfully enacted by the state legislature.

Postpone Elections?

The high court rejected an earlier stay request by the members of Congress. As a result, the district court's remedial plan will be in place for Virginia's June 14 congressional primary elections.

A reversal of the district court's judgment, reinstating the enacted plan, may require the state to postpone its congressional general elections until after the nationwide Nov. 8 election day, the members of Congress warned.

This is, however, one of a handful of cases that could split evenly as a result of Justice Antonin Scalia's unexpected death last February. A 4-4 decision would leave the lower court's decision in place, but wouldn't be binding on other courts.

A decision is expected by late June.