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May 23 — A lower court decision finding that Virginia unconstitutionally used race in drawing its most recent congressional voting map will stand after the U.S. Supreme Court dismissed an appeal of that decision May 23.
The high court didn't address the merits of the racial gerrymandering claim, instead bouncing the appeal for procedural reasons.
The Republican members of Congress who brought the appeal don't have standing to vindicate the legislatively enacted plan, the Supreme Court said. Notably, Virginia itself didn't appeal the lower court's ruling.
As a result, Virginia's June 14 primary will be conducted under a judicially enacted plan, Edgardo Cortes, a Commissioner with the Virginia Department of Elections, told Bloomberg BNA in a May 23 e-mail.
The members of Congress asserted at oral argument that politics—not race—predominated Virginia's legislative redistricting.
But the lower court imposed a “too-exacting standard” on the states' consideration of race, which “exacerbates the States’ difficulty in complying with the competing requirements of the Voting Rights Act and Constitution,” Alabama and Texas said in a Supreme Court amicus brief supporting Virginia.
“It has become axiomatic that the Voting Rights Act and Equal Protection Clause impose inconsistent, and sometimes incompatible, obligations on States in redistricting,” they said.
The Alabama Attorney General's Office didn't return a request for comment.
In the South, there is “sharp racial polarization of party preference, with African-Americans overwhelmingly supporting Democrats and white voters to varying degrees strongly supporting Republicans,” Michael Li, of the Brennan Center for Justice, told Bloomberg BNA in a May 23 e-mail.
“So what you also see in cases like Wittman is an attempt to justify racial gerrymandering on the grounds that lawmakers were just trying to target Democrats — who just happen to be black,” Li said.
“That may be an issue the Supreme Court has to wrestle with in the future,” he added.
But for now, the court said it couldn't decide that issue because there was no party with standing to appeal.
One of the congressmen intervening in the case switched which district he was running in as a result of the remedial plan put in place by the district court, according to the opinion.
“Soon after oral argument, however, the Court received a letter from counsel stating that [the Congressman] would ‘continue to seek election in [the new district] regardless of whether the Enacted Plan is reinstated,' ” the high court said.
“Given this letter, we do not see how any injury that [the Congressman] might have suffered ‘is likely to be redressed by a favorable judicial decision,' ” the court said.
There is no way to tell if that letter changed the outcome of the case, Marc E. Elias, of Perkins Coie LLC, Washington, who argued for the respondents challenging the legislatively enacted plan, told Bloomberg BNA May 23.
The court said it needn't decide whether the congressman had standing at the time he intervened because he didn't have standing now.
Elias said the court didn't rule out that a member of Congress could have standing. But it did say that members of Congress need a unique harm, he said.
The lawyer for the members of Congress didn't return a request for comment.
The district court put in place its own plan after the legislature failed to do so.
The Supreme Court's decision leaves that plan in place for the June 14 primaries.
Such judicially “enacted maps aren't common but they do happen a few times every redistricting cycle,” Li said.
“Courts this cycle, for example, have redrawn congressional maps in Texas and Florida and ordered maps to be redrawn in North Carolina, which the legislature there did (though there still is a challenge there about whether the legislature got it right).”
Normally legislatures are given the first shot at redrawing maps,” Li said. “If they fail to do so, like they did in Virginia, courts will step in.”
Virginia, however, doesn't anticipate any operational difficulties associated with the court-ordered plan.
“There was no stay associated with the order while the case was on appeal to the Supreme Court so the Department of Elections has already proceeded with implementing the court’s order,” Cortes said.
“The internal process of updating the district boundaries in our databases was completed on April 16, 2016. Notification to voters regarding the district changes was sent by local election officials in accordance with state law,” he said.
“No changes were required to our regular congressional primary calendar to account for the district changes,” Cortes said.
A high court decision reinstating the legislatively enacted plan would have wreaked havoc in the state, the members of Congress told the justices in an earlier stay request.
A reversal of the district court's judgment would have required the state to postpone its congressional general elections until after the nationwide Nov. 8 election day, the members of Congress warned.
The court's standing decision means that election will go ahead as scheduled.
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