In 2010, the Virginia House of Delegates drew new state voting districts. Several years later, twelve voters in Virginia sued the State, claiming the State officials drew the maps with discriminatory intent. The voters claimed the officials used an improper criterion which would dilute the strength of black voters.
The case originally went in favor of the State. Then the case was appealed; the Supreme Court mandated another review; and then the Virginia federal court turned the tables. In a 2018 ruling, the Virginia federal court ordered Virginia to redraw the voting districts because a number of the districts constituted illegal racial gerrymanders.
The House was not happy
The Virginia House had “intervened” in the case to help the State as a whole defend the voting districts. After all it was House officials who had drawn the districts, and they wanted to defend their own actions (better, presumably, than the State of Virginia would do without them). Once the State lost, it decided not to pursue the appeal. But the House was not in accordance.
The Virginia House decided it would appeal on its own. So while the VA Attorney General, on behalf of the State, said the State as a whole didn’t want to continue the litigation, the House pressed on.
Not just anyone can pursue a litigation. The party litigating must be the party who was harmed, or stands to be harmed, in a specific way by the resolution of the litigation. The State, as the primary defendant, the governmental body as a whole that will be affected by the litigation, has standing. But does the House alone? The Justices were divided on the issue. And the votes did not follow a regular conservative-liberal split.
Ginsburg’s majority opinion
Ginsburg’s majority opinion was supported by Thomas, Sotomayor, Kagan and Gorsuch. They denied standing for the VA House on its own. The House might have had standing if it had been authorized to pursue litigation on behalf of the State as a whole. But it wasn’t. The rest of the State didn’t want to litigate.
Alternatively, the House might have had standing if it could suffer an injury of the kind that Constitutional law on “standing” dictates. Standing law is notoriously confusing, and this case shows it. The party litigating must stand to suffer an “injury in fact” that is “fairly traceable to the challenged conduct.” In this case, the challenged conduct is the redistricting order below. That’s the order the House wants to challenge. So will the House suffer an “injury in fact” that would be caused by the redistricting order?
The majority said no. Either the State as a whole has standing, or the party with specific Virginia Constitutional authority to draw voting districts has standing. The State as a whole has standing because the voting districts are implementations of State authority. They are also implementations of the authority of the parties granted by the Constitution to draw voting districts. That would be the General Assembly as a whole. Not the House alone. The majority said it doesn’t matter that the House ended up tasked with district-drawing. It still acted for the General Assembly as a whole, so the Assembly as a whole would have to assert itself to defend the redistricting process.
Alito’s dissenting opinion was joined by Roberts, Breyer and Kavanaugh in dissent. The dissenters believe the House certainly has a stake alone. Not only did it draw the voting districts, but it stands to be injured by the outcome of redrawing the voting districts. Its members may change. Of course it stands to be injured.
The main difference between the views of the majority and the dissent is this: To the majority, the redistricting process has been challenged. The injury is only “injury in fact” to the parties responsible for the process of redistricting. To the dissent, the House may suffer from the redistricting effects. The dissenters believe that suffering a certain effect is sufficient to defend against a challenge to the redistricting process.
What about the merits?
In rejecting House standing, the Supreme Court avoided resolving this case on the merits. But we did explain the merits of the case in an earlier report. See it below.
Infographic REport on the merits:
March 13, 2019
Did Virginia draw the voting districts in line with federal laws?
This case started with voting maps that the Virginia House of Delegates drew after the 2010 census. Virginia was — and still is — required to make sure that new voting districts do not dilute minority voting power. When Virginia drew the maps in question, the state was required to get federal “pre-clearance” of the maps. Virginia sought pre-clearance and got approval, meaning the federal government reviewed the maps and decided the new districts would not diminish minority voting power.
Note: The federal pre-clearance requirement came under a provision of the Voting Rights Act which is now invalid (Shelby County v. Holder).
In 2014, after the maps had been in effect, twelve voters in Virginia sued, claiming the state officials drew the maps with discriminatory intent. The voters claimed the officials used an improper criterion in drawing 12 voting districts. The criterion, they claimed, appeared to maintain minority voting power but actually diluted minority voting power.
The BVAP criterion
Virginia decided it would make sure to keep black voting majorities in 12 districts in which minorities already controlled the vote. This, the state decided, would make sure that black voters could still elect their candidates of choice in those 12 districts. The state decided each of the 12 districts should have at least a 55% black voting age population (BVAP).
The problem is that when you cluster all of the minorities into the same districts, their votes are not going to be heard in neighboring districts. The challengers argue that Virginia was just pretending to maintain black voting power but the 55% BVAP criterion actually unfairly packed black voters into those 12 districts. The BVAP criterion, they claimed, has the effect of diluting black voting power in general.
The challengers asked the court to evaluate the line drawers’ actions under the Equal Protection Clause of the Constitution. The Equal Protection Clause prohibits state officials from discriminating on the basis of race. In regards to drawing voting districts, the state cannot use race as a “predominant” factor in drawing the districts.
Virginia: We’re between a rock and a hard place
Two federal laws mandate that states don’t discriminate in drawing voting maps: the Voting Rights Act and the Equal Protection Clause. The Voting Rights Act requires states to consider race — at least enough to make sure the new voting districts don’t dilute minority voting power. The Equal Protection Clause, also requiring that a state doesn’t discriminate against minorities, has a different mandate: Don’t use race as a “predominant” factor in districting. In Virginia’s view, these two mandates can easily conflict.
Virginia argues they have little breathing room between the two mandates — don’t use race or do? Virginia said state line drawers did their best to comply with the Voting Rights Act: they only used race to make sure not to diminish minority voting power. In fact, Virginia claims, we already got approval of the voting maps by the federal government. Now, years later, the voters are claiming we used race too much. We didn’t have a choice to not use race!
The Challengers: You’re just hiding behind the rock
The challengers argue the two federal mandates do not inherently conflict. The Voting Rights Act requires that states consider race for the right reasons (to not discriminate), while the Equal Protection Clause prohibits states from using race for the wrong reasons (for discriminating). Courts can accept a state’s use of race to comply with the VRA, yet they must stop states from using race to dilute voting power. It’s as simple as deciding whether states were trying to waste black votes by packing black voters into 12 districts. Did the line drawers have good reason for the BVAP rule or discriminatory reasons? In this case, the challengers claim, Virginia is hiding behind the VRA, purporting to use race legitimately, but actually using race illegitimately.
The Supreme Court has addressed this case before. The Virginia federal court originally ruled against the challengers in regards to each of the 12 districts. The VA court had decided that the line-drawers actually stuck to “traditional districting principles” when they drew the maps, so they must not have discriminated. The Supreme Court overturned the ruling regarding 11 of the districts. The Supreme Court ruled a state may discriminate and use traditional districting principles at the same time. Even if the traditional districting principles predominate, a state may still use race impermissibly. Regarding the last district (of the 12), the Court ruled the state had good reason to use the BVAP criterion.
On remand, the Virginia court took another look at the 11 districts. This time, the Virginia court ruled the state had violated the Equal Protection Clause in regards to all 11 of the districts.
The tables have turned, and now the Virginia officials are asking the Supreme Court to invalidate the ruling below. The Supreme Court will hear arguments on March 18, 2019.