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Virginia Redistricting Battle
Road Map for this Web Page
When this web page was originally created, it sought to summarize the current state of voting rights in America, the attempt of the Virginia General Assembly to draft a state redistricting plan based on the 2010 decennial U.S. Census, and two major legal challenges that were made to this plan -- one challenge to the proposed federal congressional districts, and another to the proposed state legislative districts. To keep all this information properly sorted, the general information is presented here and below in black, the information regarding the challenged congressional districts is in red, and the information regarding the challenged state legislative districts is in blue.
If you don't think that any of this matters, on September 9, 2016, the New York Times recently published an editorial, Virginia’s Republicans Turn Back the Clock, addressing state legislative efforts to keep African-Americans away from the ballot box in Virginia.
Update on March 21, 2016
This update was originally posted to the Local Headlines page of this website. A few years ago, the U.S. Supreme Court by a 5-4 vote invalidated a key provision of the Voting Rights Act of 1965 that allowed the U.S. Justice Department to review in advance changes to certain local laws and procedures that might adversely affect minority voting rights; afterwards, the Republican-controlled Virginia General Assembly drew-up a decennial congressional redistricting plan that Democrats claim goes way beyond acceptable political gerrymandering into the realm of unlawful racial gerrymandering; a panel of three federal judges agreed with the challengers and ordered the Commonwealth to rework its electoral map before the next election; the Democratic governor called a special session of the legislature to do this; incensed Republican legislative leaders promptly adjourned without taking any action; the federal judges drafted a new redistricting plan with the help of a political science professor from California; the new plan will likely forge a second minority-dominated congressional district in the state; several current and former Virginia Republican officeholders appealed the lower court's actions to the Supreme Court, which refused a request by the Republicans to allow Virginia to use the invalidated redistricting plan while the high court pondered what to do.
Meanwhile, the 2015 state and local elections came and went, the 2016 federal and state elections are underway (see below in Week 10), several local candidates are scrambling to run in legislative districts that are better suited to them based on the new judicially-crafted redistricting plan, Justice Antonin Scalia (who was appointed to the Supreme Court by President Ronald Reagan to replace Chief Justice William Rehnquist, who voted with the majority in the Voting Rights Act case that gave rise to all of this, and who many assumed would vote to uphold Virginia's original redistricting plan) passed away on February 13, 2016, leaving the Supreme Court evenly split 4-4 between conservative and progressive justices, and Republican leaders in the U.S. Senate refuse to consider President Barack Obama's nominee to replace Justice Scalia on the court.
Update on June 6, 2016
On June 6th, in the case challenging Virginia's proposed state legislative districts, the U.S. Supreme Court noted its "probable jurisdiction" in the case. This is the Supreme Court’s way of saying that the case, a direct appeal from a decision of a 3-judge court below, raises substantial questions of law that the justices wish to consider. Thus, the court has asked the parties to submit written legal briefs and present oral arguments in the case. Oral arguments have been scheduled for December 5, 2016..
|Update on May 23, 2016
On May 23rd, in the case challenging Virginia's proposed congressional districts, the U.S. Supreme Court unanimously decided 8-0 to dismiss the appeal filed by 10 current and former Virginia Republican congressmen challenging the congressional redistricting plan drawn up by a lower federal court in Richmond after the Republican-controlled Virginia General Assembly refused to revise its own congressional redistricting plan to address the lower court's findings of unconstitutional racial gerrymandering.
The Supreme Court found that the congressmen making the appeal lacked legal "standing" to pursue the case, that is to say they did not have a direct, personal or otherwise cognizable interest in the litigation. More specifically, the congressmen did not suffer any actual "injury in fact" that was "fairly traceable" to the challenged conduct and that could be "redressed" by a favorable decision on appeal.
The Supreme Court determined that none of the 10 objecting congressmen lived or planned to run for Congress in either the 3rd Congressional District (the majority-minority district challenged in the original lawsuit), or the 4th Congressional District (an intended new majority-minority district created by the lower federal court's redistricting plan).
As a result of the Supreme Court's action, the lower court's redistricting plan will be used in the upcoming 2016 Virginia congressional elections, and the high court side-steps a controversial new opinion on civil rights, minority voting rights, majority-minority districts, and racial gerrymandering.
|Recap of Voting Rights in America
The 15th Amendment to the US Constitution, a post-Civil War “reconstruction amendment” ratified in 1870, provides in 34 simple words that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”
Earlier, the 13th Amendment abolished slavery, and the 14th Amendment conferred the rights of citizenship, including the right to vote, upon all “born or naturalized” persons in the US, including the emancipated slaves. Well, at least African-American men aged 21 years and older, until the passage of the 19th Amendment (voting rights were extended to women in 1920) and 26th Amendment (voting age was lowered from 21 to 18 in 1971).
The promise of expanded suffrage in the 15th Amendment was thwarted for nearly a century by use of poll and other taxes (abolished in 1964 by the 24th Amendment), literacy tests, burdensome voter registration and proof-of-identification requirements, and other restrictive measures. It was not until the passage of the Voting Rights Act of 1965 that African-Americans and other minorities were able to vote in larger numbers.
The Voting Rights Act of 1965 is a landmark federal civil rights law that gives teeth to the 15th Amendment and prohibits racial discrimination in voting. Under that law, Virginia and a number of other localities, because of their long and egregious histories of discriminating against minorities in voting, had to obtain federal government approval, known as preclearance, before enacting any new voting procedures, including redistricting plans, to ensure that they did not have a racially discriminatory purpose or effect.
Establishing political boundary lines based on race, known as racial gerrymandering, is unlawful in most circumstances. However, race may sometimes be used in an affirmative manner to remedy the ill effects of past discrimination in voting. For example, the US Supreme Court has upheld the use of racial gerrymandering to create majority-minority electoral districts in which a majority of the constituents are recognized racial, ethnic or language minorities.
Majority-minority districts have been accepted in the past because they are intended to facilitate the election of representatives, typically but not necessarily minority representatives, focused on the needs and concerns of the district’s minority voters.
In recent years, however, majority-minority districts have come under challenge, even by minorities themselves, because of their adverse effects. Some have likened the corralling of minorities in such fashion to political apartheid – concentrating minority electoral influence in a few isolated and impotent districts while diluting it everywhere else.
With federal approval, Virginia has used majority-minority districts for many years since 1965 in creating both congressional and state legislative districts. Thus, when new state districting plans were submitted for federal preclearance under the Voting Rights Act, changes to any majority-minority districts were closely examined to ensure that there was no retrogression, or backsliding, in the ability of minorities to elect representatives of their choosing.
The landscape of voting rights law that existed for nearly 50 years changed dramatically in June 2013, when the US Supreme Court in Shelby County v. Holder effectively suspended the enforcement of the federal preclearance process by invalidating the original standards used in the Voting Rights Act to determine which jurisdictions, such as Virginia, remain subject to the statute’s prior review system. Those standards were deemed outdated and no longer relevant. Until the US Congress enacts new standards, all challenges to state and local voting procedures will now take place after-the-fact, often long after the fact. This is the legal context in which the challenges to Virginia’s 2011 redistricting plan, described to the right, are taking place.
|Current Virginia Redistricting Battle
Federal law provides that the populations of congressional districts must be nearly equal as practicable, and the populations of state legislative districts must be substantially equal (usually within a 10% variation). Moreover, no district may discriminate on the basis of race or ethnicity. The Virginia Constitution further mandates that electoral districts be contiguous and compact.
So long as these basic requirements are satisfied, political gerrymandering -- the drawing of district lines to favor certain political parties, officeholders, candidates or interests over others -- is legal.
In 2011, the Virginia General Assembly adopted a redistricting plan that sets congressional and state legislative district boundaries based on the US Census Bureau’s most recent 2010 census data. Opponents have challenged this plan in federal court, claiming that the plan crosses over from partisan gerrymandering to racial gerrymandering.
Challenge to House of Delegates Redistricting Plan
In Bethune-Hill v. Virginia State Board of Elections, filed in December 2014, the plaintiffs contend that the boundaries of 12 out of 100 Virginia House of Delegates districts were crafted using unlawful racial gerrymandering in violation of the Equal Protection Clause of the 14th Amendment to the US Constitution.
In October 2015, a split 3-judge panel of the US District Court for the Eastern District of Virginia in Richmond, applying the same basic legal framework in Page v. Virginia State Board of Elections described to the right, ruled that race was a predominant factor in the creation of only one of the 12 challenged House districts, House District 75, a district with irregular boundaries across the Dinwiddie-Greensville area of southern Virginia. The population of Dinwiddie County is nearly 33% African-American, and the population of Greensville County is more than 59% African-American.
The court found that while the state legislature clearly considered race in setting House District 75’s borders, it did so in a manner narrowly tailored to achieve its compelling governmental interests of ensuring that the district remained a majority-minority one. In this regard, the court noted that legislators believed that majority-minority districts in the state had to contain a black voting age population (BVAP) of no less than 55% to avoid unwanted retrogression under the Voting Rights Act.
The BVAP of House District 75 was 55.3% before the 2011 redistricting, and not meaningfully different at 55.4% afterwards. The incumbent congresswoman herself feared that any change lowering the BVAP in her district would impede the election of a minority representative.
The court also identified a number of challenges unique to House District 75 – it was under-populated as a whole, it was geographically constrained because it bordered the North Carolina state line to the south and was otherwise surrounded by mostly white-dominated communities, it contained a large non-voting prison population, and it had experienced extremely close and competitive races in recent elections in which voting was racially polarized (voting occurred mostly in self-identified racial blocks).
From this, the court concluded that there was sufficient basis to support reasonable deviations from traditional race-neutral redistricting criteria. Taken as a whole, the court ruled that Virginia's 2011 state legislative redistricting plan was not the product of impermissible racial gerrymandering and did not run afoul of the 14th Amendment.
On October 26, 2015, the unsuccessful challengers notified the district court of their intent to appeal the panel’s decision to the US Supreme Court. The Supreme Court noted its probable jurisdiction over the case on June 6, 2016 (this is the Court's way of saying that it plans to review the case), and oral arguments are scheduled for December 5, 2016.
Challenge to Congressional Redistricting Plan
In Page v. Virginia State Board of Elections, an ongoing lawsuit filed in October 2013, the plaintiffs contend that the boundaries of Virginia’s 3rd congressional district (encompassing Richmond where African-Americans constitute nearly half of the city’s total population) were race-based, constituting an unlawful racial gerrymander in violation of the Equal Protection Clause of the 14th Amendment to the US Constitution.
A year later in October 2014, a split 3-judge panel of the US District Court for the Eastern District of Virginia in Richmond found that race was the legislature’s predominant consideration in drawing the contested district’s lines. Accordingly, the court subjected the congressional redistricting plan to strict scrutiny as required by controlling judicial precedent, and determined that the state’s boundary-setting was not narrowly tailored to accomplish its compelling governmental interests in protecting minority voting rights and electoral positions.
The court ruled that the legislature went beyond maintaining a longstanding majority-minority district established under the Voting Rights Act of 1965 to remedy prior discrimination in voting when it sought to “pack” more minorities into the district to reduce their political influence in other districts. The court thus invalidated the congressional redistricting plan and ordered the state to create a new one before the start of the 2015 election cycle.
Thereafter, in December 2014, Virginia’s eight Republican congressmen appealed the district panel’s decision directly to the US Supreme Court in Cantor v. Personhuballah. The Supreme Court held the case for almost 4 months until it rendered its opinion in another redistricting case, Alabama Legislative Black Caucus v. Alabama, in March 2015, at which time the Supreme Court vacated, or annulled, the lower court’s decision and remanded, or sent, the case back for reconsideration in light of the newly-issued Alabama decision. It should be noted that neither Virginia (whose executive branch has been under Democratic Party control since January 2014) nor its three Democratic congressmen supported the appeal.
In June 2015, the district court, applying Alabama on remand, affirmed its earlier ruling finding that Virginia’s 3rd congressional district was the result of an unconstitutional racial gerrymander, and again ordered the state to redraw the district, this time by September 1, 2015.
After several failed procedural moves to delay implementation of the district court’s decision, Governor Terry McAuliffe convened a special session of the General Assembly on August 17, 2015 to draw up a new congressional redistricting plan that would satisfy the court’s ruling, but the Senate unilaterally adjourned a few hours later without taking up the matter.
The task of creating a new congressional district plan now falls to a 3-judge panel formed by the US Court of Appeals for the Fourth Circuit in Richmond (this case, Personhuballah v. Alcorn, is a continuation of Page v. Virginia State Board of Elections in the US District Court for the Eastern District of Virginia). On September 23, 2015, Circuit Judge Albert Diaz appointed Professor Bernard Grofman, an economics and political science professor at the University of California, Irvine, as a Special Master to assist the court in drawing up an acceptable plan. That same day, the court of appeals also authorized Virginia’s Division of Legislative Services to post on its website and make available for public access and download all remedial plans and supporting materials that have been submitted for the court’s consideration.
Meanwhile, Virginia’s eight current Republican congressional representatives, together with two former Republican congressmen from Virginia, none of whom live in or represent the residents of Virginia's 3rd Congressional District, appealed the district court’s June 2015 decision to the Supreme Court in Wittman v. Personhuballah, and the court added the case to its active docket on November 13, 2015. Oral arguments in the case have been scheduled for March 21, 2016.
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