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Legal Twist Shapes Virginia Redistricting Case at High Court

Can members get involved in fights over shapes of neighboring districts?

Rep. Bobby Scott's district in Virginia is the subject of a Supreme Court challenge over redistricting. (Photo By Douglas Graham/CQ Roll Call)
Rep. Bobby Scott's district in Virginia is the subject of a Supreme Court challenge over redistricting. (Photo By Douglas Graham/CQ Roll Call)

The Supreme Court will hear oral arguments Monday in a case that could determine if members of Congress can interject themselves in legal disputes over the borders of neighboring districts.  

Ten current and former Republican members of Congress from Virginia want the Supreme Court to stop a court-ordered redistricting plan in that state. But first the lawmakers will have to convince the justices that they have the right to challenge it.  

The main issue in the case is a fight about how Virginia drew the lines after the 2010 census for the majority-black 3rd District held by Rep. Robert C. Scott, a Democrat. A federal three-judge panel in 2014 found those lines to be an unconstitutional gerrymander, and decided Jan. 7 to select a new congressional map and put it into effect for this year’s elections.  

Here’s the legal twist: None of the Republican lawmakers appealing the lower court ruling live in the 3rd District. The challenge is from Reps. Rob Wittman, Robert W. Goodlatte, J. Randy Forbes, Morgan Griffith, Scott Rigell, Robert Hurt, Dave Brat and Barbara Comstock, as well as former members of Congress Eric Cantor and Frank R. Wolf. The Supreme Court agreed to hear the dispute but the justices added their own issue: whether these lawmakers lack the right to be in court, called standing, “because none reside in or represent the only congressional district whose constitutionality is at issue in this case.”  

The justices add their own question to a case occasionally, and it shows that at least some of the justices find it to be a compelling issue to settle. After Monday’s arguments, the court is expected to rule on the case at a later date, before the end of the term in June.  

The lawmakers argue in briefs that they have standing because the new maps will harm them by moving Democratic voters into their districts and decrease their chances of re-election.  

There’s some real world action to back them up. The new map to fix the unconstitutional gerrymander moved Richmond and Petersburg, which are heavily Democratic and black, into the 4th District represented by Forbes. That prompted Forbes to run in the neighboring 2nd District, which is open because Rigell will retire from representing the 2nd District at the end of his current term.  

Democratic state Sen. Donald McEachin , a widely respected black legislator, announced last week that he will run in the 4th  District race.  

The United States, however, argues in a brief that a candidate’s electability isn’t a “legally protected interest,” and that justices should reject the challenge on that basis.  

“Appellants’ desire to fence out those voters to enhance their odds of electoral success does not amount to a judicially cognizable harm,” the United States argues it its brief.  

The Republicans argue they have standing to appeal the court’s decision as if they lived there, because it would require transforming at least one of their majority-Republican districts into a majority-Democratic district. As an example, one of the proposed maps would increase the percentage of Democrats in District 4 — now represented by Forbes — from 48 percent to 60 percent.  

That gives the lawmakers “the same standing they would have if one resided in District 3, because any remedy affects incumbents in the districts surrounding District 3 to the same extent as it affects District 3’s incumbent,” their brief states. “In particular, the judgment requires a remedy that moves black (and overwhelmingly Democratic) voters from District 3 into surrounding Republican districts, and an equal number of non-black (and far less Democratic) voters into District 3 from those districts.” The harm to the lawmakers’ re-election chances “are identical to or even more substantial than injuries this court has upheld as sufficient to confer standing” in other electoral cases, the lawmakers brief states.  

If the court finds the lawmakers have standing to file the challenge, they will then decide whether the lower-court panel erred when it found race predominated Virginia’s drawing of District 3.  

The court found the state drew lines to have at least 55 percent black voters in District 3, which was not based on voter patterns but the legislature viewed as a way of obtaining preclearance from the Justice Department under the Voting Rights Act.  

The lawmakers argue that preserving District 3’s shape would have looked the same because the shape was a “necessity” for political and incumbent protection reasons. Any serious alteration of the district shape or reduction in black voters would “send a significant number of overwhelmingly Democratic voters into the four adjacent districts, all of which had Republican incumbents.”  

A ruling in June could cause redistricting changes late in the election cycle, if the high court requires them. The case is Wittman v. Personhuballah, Docket No. 14-1504.  


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