May 27, 2016

A Supreme Court Victory Over Racial Gerrymandering in Virginia


Arusha Gordon, Racial justice, redistricting

by Arusha Gordon, Associate Counsel, Legal Mobilization Project, Lawyers’ Committee  for Civil Rights Under Law

On Monday, the Supreme Court issued a unanimous decision in Wittman v. Personhuballah, No. 14-1504.  The case involves Virginia’s Third Congressional District, which the Virginia State Legislature drew in the wake of the 2010 census. In drawing and then approving the challenged map, the Virginia legislature chose to increase the Black Voting Age Population (BVAP) of Virginia’s only majority-minority congressional district (Congressional District 3) from 53.1 percent to 56.3 percent, rather than creating two congressional districts with significant percentages of African-American voters. Currently, Representative Bobby Scott, from the Third Congressional District, is Virginia’s only African-American representative in Congress.

Plaintiffs – three Virginia voters – sued the Commonwealth of Virginia, challenging the 2010 redistricting plan as a racial gerrymander in violation of the Equal Protection Clause of the United States Constitution. A three-judge panel of the District Court of Virginia found that, in violation of the constitution, racial considerations were the Legislature’s predominant concerns in drawing the district and it was not necessary to draw the challenged plan to achieve a compelling governmental interest. In January, 2016, the District Court approved a remedial plan for redistricting.

Although the Commonwealth elected not to appeal the District Court’s decision, members of Virginia’s Congressional delegation chose to intervene and then appeal. In addition to raising questions regarding the merits of the case and whether the redistricting plan was constitutional, the appeal also raised questions regarding when a party has standing to intervene. 

In a unanimous decision authored by Justice Stephen Breyer, the Supreme Court dismissed the appeal, without reaching the merits of the case. Three of the 10 original interveners claimed standing on appeal, including Rep. Randy Forbes (VA-4), Rep. Robert Wittman (VA-1), and Rep. David Brat (VA-7). Rep. Wittman and Rep. Bratt alleged that they had standing because their chances for re-election would be reduced because “unless the Enacted Plan is reinstated, ‘a portion of the[ir] ‘base electorate’ will necessarily be replaced with “unfavorable Democratic voters.”  Rep. Forbes argued that he had standing as the change in plans would force him to run in a different district (District 2) because his old district (District 4) would be completely transformed with an influx of Democratic voters. However, Rep. Forbes later informed the Court in a letter that he would still be running in his original district, despite the adoption of the remedial plan. None of the interveners actually lived in the districts affected by the remedial plan. The Court dismissed Interveners’ appeal noting that “[a] party has standing only if he shows that he has suffered an ‘injury in fact,’ that the injury is ‘fairly traceable’ to the conduct being challenged, and that the injury will likely be ‘redressed’ by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992). The Court examined Interveners’ briefs but found no evidence that Interveners’ chances of reelection would be reduced under a different redistricting plan and concluded that Interveners therefore lacked standing.

The Court’s decision means that the remedial plan, approved in January, will be in effect for the November election. The plan is expected to provide African-American voters with a reasonable opportunity to elect their candidate of choice not only in the Third Congressional District, but in the adjoining Fourth Congressional District as well.