Post by Ethan Gardner, Democracy Fellow, Public Policy and Administration ’20
On Monday, June 17, the United States Supreme Court released its opinion in the case of Virginia House of Delegates v. Bethune-Hill. The case sought to determine the standing of the Republican leadership of the Virginia House of Delegates in challenging a new map of the House of Delegates that was accepted by the Virginia Supreme Court after previous maps were struck down due to racial gerrymandering. Because Virginia Attorney General Mark Herring’s office chose not to pursue a legal challenge after a federal court found “overwhelming evidence” that the state had “sorted voters into districts based on the color of their skin,” violating “the guarantees of the Equal Protection Clause, and because of the failure of the House of Delegates to meet thresholds to represent the Commonwealth in federal court, the SCOTUS ruling means that the newly drawn maps will apply through the 2019 elections.
Virginia’s political leaders reacted to Monday’s important decision with a number of references to the General Assembly elections this Fall. Attorney General Mark Herring (D) called the ruling a “big win for democracy in Virginia” and said that it is “good news” that the upcoming elections “will take place in constitutionally drawn districts.” Speaker of the House Kirk Cox (R), who initiated the lawsuit, released a statement lamenting that the Court did not assess the lawsuit’s arguments against the new map and said that the decision “leaves a lot of unanswered questions just two years before the next redistricting cycle.” He went on to criticize the Attorney General for not representing the state in this case, stating that if he would have “defended the law of the Commonwealth,” then the Supreme Court would have been able to decide the merits of the case.
Brief History of the Case
The roots of the case stem from several Virginia voters challenging the legality of the House of Delegates map in 2014, resulting in a 2018 ruling by the US District Court for the Eastern District of Virginia. The District Court ruled that 11 Virginia House of Delegates Districts, primarily in the Richmond and Hampton Roads areas, were racially gerrymandered in an unconstitutional way because they had improperly used racial targets to push black voters into certain districts thereby weakening their representation in other districts. After the General Assembly and Governor’s office failed to agree on a new map within a timeline established by the, the Judges ordered a California professor who specializes in drawing political maps to design new maps and the Virginia court chose one in February 2019.
The Republican leadership of the House of Delegates challenged the newly-drawn map through legal action. Speaker of the House Kirk Cox asserted that “the [maps] selected by the Court target senior Republicans, myself included, without a substantive basis in the law.” The legal challenge was argued in the Supreme Court in March.
Virginia’s House of Delegates map is one of many legislative maps that have been struck down by courts for gerrymandering voters on the basis of race. Partisan gerrymandering, though often criticized, remains completely legal in the United States, but racial gerrymandering has been determined to be unconstitutional under the 14th Amendment’s Equal Protection Clause. Racial gerrymandering traditionally consists of either ‘packing’ racial groups into a few specific districts to weaken their voting power across many districts or ‘cracking’ racial groups into many legislative districts so that their voting power is diminished in most or all of the districts. Virginia was ruled to have engaged in the former. Still, debates continue about how to effectively redistrict so that racial groups have great enough voting power while not packing districts in an unconstitutional fashion.
The Supreme Court decision was based on a determination of the standing of the Virginia House of Delegates to challenge the maps. Justice Ruth Bader Ginsburg wrote the majority opinion for the Supreme Court and asserted that the House of Delegates, being only one House of a bicameral legislature, does not have standing to represent Virginia in challenging the maps. The Court did not take up arguments on the constitutionality of the new maps, meaning that Virginia must follow lower court orders to implement the newly drawn maps.
Also at issue in the case was the role of the Attorney General of Virginia to represent the state in legal matters. Throughout federal court proceedings that began in 2014, Virginia Attorney General Mark Herring, a Democrat, defended the districts that were later ruled unconstitutional because Virginia law tasks the attorney general with the job of defending the state’s interests in court. When a federal court ordered the maps to be redrawn in 2018, Attorney General Herring publicly declined challenging the new maps through litigation, stating that doing so “would not be in the best interest of the Commonwealth or its citizens.” The House of Delegates Republican leadership attempted to take on the role of representing Virginia in challenging the maps by filing their own lawsuit. In the 5 to 4 decision, the Supreme Court held that the House of Delegates “has no standing to appeal the invalidation of the redistricting plan separately from the State of which it is a part” and cannot “displace” the authority of the Virginia Attorney General to represent the state.
The Court outlined the thresholds that must be met for a challenge such as this to be valid, and specified how the House of Delegates’ challenge fell short. First, the Virginia Constitution gives exclusive authority over the State’s interests in civil litigation to the Attorney General. As they are not the office of the Attorney General, nor were they designated by the Attorney General to make this legal challenge, they do not meet the qualifications under Virginia law. The House of Delegates could have standing if it could show a “concrete and particularized injury” (pg. 1). However, the opinion of the Court noted that the invalidation of a state law has never been determined to meet that threshold, especially since the invalidation of these maps do not permanently change or damage the House’s authority in redistricting processes. Further, the Court acknowledged that the decision could impact the membership of the House, but it asserted that the House institutionally “has no prerogative to select its own members.” The Court made no re-examination of the original arguments that determined 11 Virginia districts to be unconstitutionally racially gerrymandered.
The opinion did not follow the common ideological lines of the Court. The majority opinion was drafted by Justice Ginsburg and was joined by Justices Thomas, Sotomayor, Kagan, and Gorsuch. The Dissenting Opinion was drafted by Justice Alito, joined by Justices Breyer, Roberts, and Kavanaugh.
Political Impact on 2019 Legislative Elections
Confusion at Polls: The new House of Delegates map is here to stay and it will have a number of impacts on the 2019 General Assembly elections in November. Much of the discussion has been over the partisan impact in the coming election, which I will assess below, but there are also concerns over confusion among voters. This year, many voters in Richmond and Hampton Roads now find themselves in new legislative districts with different precincts than they are accustomed to. During the June 11 Primary Elections in Virginia, there were reports of confusion among voters in the Hampton Roads region. The Virginian-Pilot reported on “lower-than-normal turnout” at precincts like Hampton City Hall and an election official in Yorktown reported that he had to turn away two ineligible voters for every person able to vote (Brashear and Colby). Speaker of the House Kirk Cox had warned of possible confusion back when the Supreme Court agreed to take the case in November 2018, suggesting that the primary election dates be moved until the case was resolved. That ultimately did not occur and local reports suggest there was confusion in the redrawn districts. It will be important that voters are educated and election officials take effective steps to implement the maps accurately and effectively.
Partisan Impact: The Supreme Court’s decision ensures that the redrawn House of Delegates map will be in place during the General Assembly elections this Fall. These maps will likely have a significant impact the election results. The Virginia Public Access Project conducted an analysis of the “change in partisan performance” in each individual House District impacted by the new map. In all, they found that 25 districts are affected, with partisan swings of as little as 0.3 points to as large as 32 points. Twelve Democratic districts became more Republican as a result of the plan, while eight Republican districts became more Democratic as a result. Though more Democratic districts have been impacted, the opposition to the new maps is overwhelmingly from Virginia Republicans.
Opposition to the new maps are based in worries that the new districts will disadvantage incumbent Republicans. The original House of Delegates map was drawn during the 2011 redistricting cycle, when the Republican party had control of the Governor’s office and the House of Delegates. The racial gerrymandering scheme that was ruled unconstitutional was based on decisions to pack large percentages of African Americans into a relatively small number of districts. As African Americans tend to vote heavily Democratic, it resulted in packing a large number of Democratic voters into a small number of districts, advantaging nearby Republican incumbents. The new maps undo that packing of voters, spreading African American votes more evenly into nearby districts, potentially resulting in increased percentages of Democratic voters in those districts.
While some heavily Democratic districts will see increases in Republican votes, it is likely that none will see a significant enough change to flip their seats to Republican. Republican districts will likely see enough of an increase in likely Democratic voters that control of their seats are in jeopardy. In some cases, this is because their majorities in their district are close to 50-50. In other cases, such as Speaker Kirk Cox in district 66, there will be a potentially massive shift in the partisan makeup of their district. See this graphic from the Virginia Public Access Project.
Virginia’s General Assembly is currently in Republican control by a very thin margin. Republicans hold a 51-49 majority in the House of Delegates and a 21-19 majority in the Virginia Senate. The House of Delegates has not seen Democratic control in over two decades. The stakes of the General Assembly elections this November are high, as partisan control in either chamber of the legislature provides control over the legislative agenda and committee appointments, and the redistricting process is coming up in 2021. The implementation of these maps will have significant impact on the outcome of the elections in the Fall, as many voters in Richmond and Hampton Roads have found themselves in new districts.