Last month the Supreme Court announced that it would, for the second time, review a case from Virginia challenging the legislative districts drawn in 2011 for the state’s House of Delegates as the product of unconstitutional racial gerrymandering – the idea that legislators relied too much on race when drawing the maps. Today Virginia legislators were back at the court, asking the justices to block proceedings in the lower court aimed at coming up with new maps for the 2019 election until the Supreme Court can rule on the dispute.
The Virginia case is one with which the justices are already very familiar. Last year, the court ruled that a lower court had applied the wrong legal standard when it rejected claims that 12 districts were the product of racial gerrymandering. The Supreme Court upheld one district, but it ordered the lower court to take a fresh look at the other 11 – and, in particular, at whether race was the primary factor used to draw those districts.
Applying the standard outlined by the Supreme Court, the lower court concluded that race was indeed the primary factor behind the district boundaries. Because the legislature also had not shown that it needed to use the same population targets in each of the “vastly dissimilar” districts at issue to comply with federal voting-rights laws, the lower court ruled, the districts are unconstitutional.
Represented by former U.S. solicitor general Paul Clement, the Virginia House of Delegates today asked the justices to step in and put further proceedings in the lower court on hold until the Supreme Court rules on the case. The legislators complained that the lower court has “forged ahead” to create a new map, prepared by a voting-rights expert appointed by the court, so that new maps can be in place in time for Virginia’s 2019 off-year elections.
But there is no need to rush, the legislators explained. The state has adjusted election deadlines in the past – for example, by holding primaries at the end of the summer, rather than in the spring – and can easily do so here. And putting the map-drawing process on hold is the better option, to avoid the confusion that could result if competing plans were created. Indeed, the legislators observed, the district court’s order rests on the idea that all 11 of the challenged districts are unconstitutional and that the Supreme Court will agree, setting up the “real possibility that House candidates and voters will spend months preparing for elections in districts that will not even exist come November.” On the other hand, waiting to draw the maps after the Supreme Court’s ruling will allow the two sides to come up with a plan that is consistent with the Supreme Court’s decision, whatever that decision is.
Chief Justice John Roberts, who considers emergency requests from the geographic area that includes Virginia, today ordered the challengers in the case to file a response to the legislators’ application by noon on Thursday, December 20.
This post was also published on SCOTUSblog.