RECENT RACIAL GERRYMANDERING IN VIRGINIA

In my mind, the subsequent legal analysis shines a light on the following points:

 

1. The recent redistricting decision in Virginia is an example of the courts invalidating a "packed" district where minorities made up so much of the district’s population that their votes were diluted in neighboring districts;

2. The Voting Rights Act and the concept of "Opportunity Districts" meant to elect minority candidates have been used against blacks and, by proxy, against Democrats by taking the districts' compositions to extremes;

3. Dragging the court appeals process out for years is an effective tactic to prevent change when those in power like the districts they've drawn. In this case, dragging out the process allowed Republicans six additional years to cause disadvantage to others during Congressional elections.

-Janice Bayer

 

RECENT RACIAL GERRYMANDERING IN VIRGINIA

By Mark Schmidt, Esq.

 

Overview

In 2015, the U.S. District Court sitting in Richmond, Virginia struck down legislation passed by the Virginia General Assembly for the redistricting of Virginia’s congressional districts because the legislation packed black votes into the 3rd Congressional District, thereby diminishing black voters’ opportunities to elect candidates in other districts.

In 2016, following the failure of the General Assembly to reenact new legislation, the court adopted a new districting plan that was utilized for the 2016 congressional elections in Virginia.

The court case was Page, et al. v. Virginia State Board of Elections, et al., Civil Action No. 3:13cv678, in the United States District Court for the Eastern District of Virginia, Richmond Division.

Factual History

In 1868, the States ratified the 14th Amendment to the U.S. Constitution, which provided that no State could deny any person within its jurisdiction the “equal protection of the laws.”  Subsequently, the Supreme Court held that voting was a fundamental right, and that the impairment of voting rights based upon race violated the “equal protection clause.”

In 1965, Congress enacted the Voting Rights Act (“VRA”) which was designed to eradicate discriminatory practices that restricted blacks’ ability to register and vote in the segregated South.  Until 2013, the VRA required Virginia to submit any changes to its election or voting laws to the U.S. Department of Justice (“DOJ”) for a federal "preclearance" review.  To obtain “preclearance,” Virginia had to demonstrate that a proposed law had neither the purpose nor effect of denying or abridging the right to vote on account of race.

The federal census is taken every ten years.  The Virginia Constitution requires the General Assembly to reapportion Virginia's U.S. congressional districts every ten years based on the federal census data.  According to the Virginia Constitution, districts must be "contiguous and compact” and equal in population.

Following the 2010 census, the General Assembly adopted a redistricting plan based upon the federal census data.  Governor Bob McDonnell signed the plan into law on January 25, 2012.

The plan’s official goals were to achieve population equality among districts, compliance with federal and state constitutional requirements, and to comply with the VRA.

Delegate William Janis, the plan’s sole author and key sponsor, emphasized that his “primary focus” in drawing Virginia's new congressional maps was ensuring that the 3rd Congressional District maintained at least as large a percentage of black voters as had been present in the district under the prior districting plan.

Delegate Janis further stated that the avoidance of any “retrogression” of minority influence in the 3rd Congressional District took primacy over other redistricting considerations because if that occurred, DOJ would not approve the plan.

Additionally, according to Delegate Janis, districts were drawn to “respect to the greatest degree possible the will of the Virginia electorate as it was expressed in the November 2010 elections” and to protect incumbent congressmen.

Delegate Janis’ plan divided Virginia into eleven congressional districts.  The 3rd Congressional District started in Richmond, captured parts of Petersburg, and variously crossed the James River to include parts of Newport News, parts of Hampton, and parts of Norfolk.  The district had a black voting age population (“BVAP”) of 56.3%.  By comparison, in the districting plan enacted following the 2000 census, the district had a BVAP of 53.1%.  And when the district was first created in 1991 as a majority black district, it had a BVAP of 61.2%.

DOJ subsequently did approve Delegate Janis’ proposed plan, finding the plan did not cause any retrogression in the ability of minorities to elect their candidates of choice.

On October 2, 2013, several persons, all U.S. citizens, registered to vote, and residing in the 3rd Congressional District, filed a lawsuit against the Virginia State Board of Elections. It was alleged that Virginia had used the VRA as a pretext to pack black voters into Virginia's 3rd Congressional District and thereby reduce these voters’ influence in other districts, in violation of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.  Virginia’s U.S. Congressmen Eric Cantor, Robert Wittman, Bob Goodlatte, Frank Wolf, Randy J. Forbes, Morgan Griffith, Scott Rigell, and Robert Hurt (“Intervening Congressmen”) joined the lawsuit as intervenors defending the redistricting plan.

The case was heard by a three-judge court of the U.S. District Court for the Eastern District of Virginia, sitting in Richmond.  Trial began on May 21, 2014.

On October 7, 2014, the three-judge court ruled Virginia's 3rd Congressional District was unconstitutional because the consideration of race predominated in the drawing of the congressional district boundaries, and the redistricting plan could not survive the strict scrutiny required of race-conscious districting because it was not narrowly tailored in effect.

The Intervening Congressmen appealed the decision to the U.S. Supreme Court, which remanded the case to the three-judge court to be re-decided taking into account recent opinions of the Supreme Court.

On June 5, 2015, the three-judge court ruled again on the same grounds as its October 7, 2014, ruling that the redistricting plan was unconstitutional, and ordered the General Assembly to adopt a new redistricting plan by September 1, 2015.

The Intervening Congressman again appealed to the U.S. Supreme Court, but their appeal was denied.

When the General Assembly failed to enact new legislation by the target date, the three-judge court selected one of sixteen plans that had been submitted for its consideration by the parties and others.  The plan selected centered a more compact 3rd Congressional District around Tidewater, with a BVAP of 45.3% (down from 56.3%), thereby increasing the BVAP in the abutting 4th Congressional District including Richmond to 40.9% (up from 31.3%).

The new plan was implemented in time for the 2016 elections. In those elections, black Congressmen were elected in both the 3rd and 4th U.S. Congressional Districts.

The Legal Analysis

As stated above, voting is a fundamental right, and the impairment of voting rights by a state based upon race violates the equal protection clause of the 14th Amendment.  So, when race “predominates” in the drawing of a redistricting plan, a court will review the plan with “strict scrutiny” to ensure the plan is “narrowly tailored” to achieve a “compelling governmental interest.”  In contrast, if race is only one of several factors considered, and does not dominate above other interests, the plan need only have a rational basis to be valid.

Here, the court (by a 2 to 1 vote) concluded that race predominated in the drawing of the redistricting plan.  First, the court noted Delegate Janis’s statements emphasizing the importance of race in crafting the plan.  Additionally, the court noted the use of BVAPs to ensure the 3rd Congressional District would not experience any “retrogression” of minority influence.  Finally, the court observed the 3rd Congressional District was suspiciously odd and elongated, was not “compact,” and its boundaries split numerous political jurisdictions.  Concluding that race predominated in the drawing of the redistricting plan, the court then applied “strict scrutiny” to evaluate the constitutional validity of the plan.

The court and all the parties agreed that the redistricting plan’s purpose to achieve population equality among districts, to comply with federal and state constitutional requirements, and to comply with the VRA, was a valid “compelling governmental interest.”

However, the court ruled the redistricting plan was not “narrowly tailored” as to the impact it had upon minority voting influence.  Essentially, the court found the 3rd Congressional District had been a safe majority-minority district for over 20 years and did not need its BVAP to be increased in order to remain a safe district.  By unnecessarily increasing the BVAP in the 3rd Congressional District, the plan necessarily diluted BVAPs in abutting districts.

According to the court, non-retrogression was not a license for the State to do whatever it deemed necessary to ensure continued electoral success for blacks in the 3rd Congressional District; it merely mandated that the minority's opportunity to elect representatives of its choice not be diminished, directly or indirectly, by the State's actions. Further, this mandate did not necessarily apply to only the 3rd Congressional District.