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U.S. Supreme Court to hear arguments in appeal of Virginia racial gerrymandering case

The Supreme Court building in Washington. (Jonathan Newton/The Washington Post)

The U.S. Supreme Court will hear arguments Monday in a redistricting case that could help determine the balance of power in Virginia’s legislature for years to come.

A panel of lower-court judges ruled last year that 11 Virginia House of Delegates districts were racially gerrymandered and ordered a new map to correct them. House Republicans appealed that finding and will argue against the new map Monday before the high court.

All 140 seats in the legislature are on the ballot this fall, and the GOP holds two-seat majorities in both the House (51 to 49) and the Senate (21 to 19). Democrats have been hoping that a wave of success in recent Virginia elections will propel them to control of the legislature for the first time since 1995.

The party that controls the General Assembly in 2021 will oversee the next statewide re­districting effort, following next year’s census — potentially cementing an advantage in future elections.

However, Democrats’ momentum has been slowed by recent scandals involving the state’s three top elected officials, all Democrats. Gov. Ralph Northam and Attorney General Mark R. Herring have both admitted racist incidents from their past, and Lt. Gov. Justin Fairfax has denied two separate allegations of sexual assault.

A redistricting map approved this year by judges in the U.S. District Court for the Eastern District of Virginia to correct the racial gerrymandering appears to favor Democrats. It realigns a total of 26 House districts as it remedies the 11 under court order. Six Republican delegates would find themselves in districts with a majority of Democratic voters, according to an analysis by the nonpartisan Virginia Public Access Project.

House Republicans point out that the current political boundaries won bipartisan approval in 2011. They’ve appealed the lower court’s finding that black voters were unfairly concentrated, arguing that the plan was approved by the Justice Department under President Barack Obama.

U.S. Supreme Court to take up Virginia redistricting case on racial gerrymandering

In agreeing to hear the appeal, the Supreme Court said it would first consider the issue of whether the House Republicans have legal standing to bring it. That hinges on whether the House leaders can show they would be harmed by the ruling.

Herring, the state attorney general, has argued that only his office has standing to represent the state in such a case, and it has opted not to appeal. The Trump administration has filed a friend-of-the-court brief that essentially agrees with that position, saying that the House of Delegates as an institution has no inherent interest in the shape of its districts or who gets elected to represent them.

The high court could end the case by finding the House has no legal standing to bring the appeal.

Steven Schwinn, a professor of constitutional law at the John Marshall Law School in Chicago, said the fact that the Supreme Court denied an earlier request from House Republicans to delay enacting the redistricting plan approved by the lower court, allowing it to go forward even as the case is under appeal, suggests that the high court is more interested in the issue of standing than in the merits of the case.

U.S. Supreme Court rejects Republican bid to delay redistricting in Virginia

House Speaker Kirk Cox (R-
Colonial Heights), whose home district is among those that could swing toward Democrats under the new map, is spearheading the appeal.

The original case was brought by voters represented by the Democratic lawyer Marc E. Elias, who has filed such challenges around the country.

“It’s very much unfortunate that a national group funded by unknown liberal donors has taken a systematic approach to attacking redistricting around the country,” said Cox’s chief of staff, Matthew Moran.

He pointed out that while the Trump administration disputes the standing portion of the case, it agrees with the House leaders on the actual merits. The boundaries in dispute were approved in 2011 by Republicans and Democrats alike — including Northam and Herring when they served in the General Assembly.

Since Herring opted not to appeal the ruling, House leaders have paid almost $4.5 million to the law firm BakerHostetler to handle the case.

“Unfortunately, the taxpayers have had to defend a map that was passed by a bipartisan majority of both chambers,” Moran said.

Charlotte Gomer, a spokeswoman for Herring, cast the case as “fighting racial gerrymandering.”

“Given everything that’s happened in the past month or so, there’s kind of renewed relevancy to that,” she said.

Northam has a chance to back his words with actions, and his party may hang in the balance

Herring last month admitted to darkening his face to imitate a rap singer during a party at college in 1980. That followed the emergence of a racist photo from Northam’s 1984 medical school yearbook page showing one person wearing blackface and another in Ku Klux Klan robes.

Northam initially took responsibility for the photo but later disavowed it — though he admitted wearing blackface to resemble Michael Jackson in a dance contest that same year. Both Herring and Northam have pledged to work for racial reconciliation through the remainder of their terms.

The question is whether that will be enough to help their fellow Democrats in this fall’s elections, even if they prevail in the Supreme Court case and get the new districts.

“Favorable lines are one thing; being able to win in the new districts — well, that’s something entirely different,” said Stephen Farnsworth, a political scientist at the University of Mary Washington. “The scandals are going to be an impediment to Democrats being able to maximize the opportunity that those lines would present.”

Robert Barnes contributed to this report.

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