Supreme Court declines to intervene in Virginia redistricting dispute

Today the Supreme Court rejected a request by Virginia legislators to put lower-court proceedings in a case challenging the legislative districts drawn for the state’s House of Delegates as the product of unconstitutional racial gerrymandering – that is, the idea that legislators relied too much on race when drawing the maps — on hold until the justices rule on the case. Today’s order means that a federal district court’s efforts to create a new map, with the assistance of a voting-rights expert appointed by the court, for the state’s elections in November can move forward, even as the Supreme Court prepares to hear oral argument and eventually issue a decision that could prompt changes in that map.

The court’s order came in Virginia House of Delegates v. Bethune-Hill, which will likely be argued in March. The case is on its second trip to the Supreme Court: In 2017, the justices concluded that a lower court had applied the wrong legal standard when it rebuffed the challengers’ claims that 12 districts were the result of racial gerrymandering. Although the justices upheld one of the 12 districts, it sent the case back to the lower court for it to take another look at the remaining 11 districts.

In June of last year, the lower court struck down the districts as unconstitutional. It concluded that race was indeed the main factor dictating the boundaries for the districts, and that the legislature had not shown that it needed to try to have the exact same percentage of African-American adults in each of the “vastly dissimilar” districts at issue to comply with federal voting-rights laws.

The state’s House of Delegates appealed to the Supreme Court in September, and the justices announced in November that they would review the case – including the question whether the House of Delegates has a legal right, known as standing, to take the case to the Supreme Court.

Meanwhile, with Virginia’s off-year elections scheduled for November 2019 (and a decision from the Supreme Court not likely until May or June), the lower court continued to move ahead with plans to draw new maps, with the assistance of a voting-rights expert from California.

The lower court’s actions prompted the House of Delegates to return to the Supreme Court last month, asking the justices to put further proceedings in the lower court on hold until the Supreme Court can decide the case. The Republican legislators told the justices that the new map could and should wait, even if it means that the state has to tinker with its election deadlines so that it can take the court’s eventual ruling into account.

Both Virginia officials and the individuals challenging the original districts urged the justices to allow the lower court to proceed, characterizing the legislators’ request as a ploy to get around the decision by state election officials to keep the redistricting process moving forward. The state officials and the challengers attacked the legislators’ right to appeal to the Supreme Court at all, arguing that “nothing in Virginia law authorizes the House to represent the State’s interest.” And more broadly, they contended that the House of Delegates would not be injured if the redistricting process continued – one factor that the Supreme Court would consider in deciding whether to intervene – because the legislature does not play any role in the state’s elections. The district court has concluded that if it waits for the Supreme Court’s decision to come up with a new redistricting plan, the 2019 election will likely take place using the old districts, and the Supreme Court should defer to that judgment, the state officials emphasized.

In a brief order today, the justices refused the legislators’ request. The order indicated only that Chief Justice John Roberts, who handles emergency appeals from the geographic area that includes Virginia, had referred the request to the full court, which is a common practice in these circumstances, and that the request was denied. There were no public dissents from the order.

This post was originally published at Howe on the Court.