The U.S. Supreme Court will take up the issue of redistricting in Virginia, agreeing to hear an appeal filed by Republican legislators after a lower court’s ruling that 11 House of Delegates districts must be redrawn to correct racial gerrymandering.

The action does not appear to halt the redistricting process, though, which is underway at the hands of a “special master” appointed by a three-judge panel of the U.S. District Court for the Eastern District of Virginia.

House Speaker Kirk Cox (R-
Colonial Heights), who filed the appeal, said he is considering his next steps, which could include seeking to halt redistricting until the Supreme Court rules on the case.

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“We will take the next few days to consider that and make an announcement at the appropriate time,” Cox said via email.

Marc E. Elias, an election lawyer representing those who challenged the design of the districts, noted in a tweet: “This is the 3rd time SCOTUS will hear cases related to VA’s unconstitutional gerrymander. We have prevailed in each of the first two and expect to again here. What is most important is that the voters of VA have constitutional maps in time for the 2019 state house elections.”

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At stake is control of Virginia’s House of Delegates. The GOP barely held onto its majority last year in the 100-seat chamber after 15 Democrats flipped seats in elections. One Republican prevailed in a random tiebreaker, leaving the GOP with a 51-49 edge.

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The 11 districts are in Hampton Roads and greater Richmond, but redrawing them will affect several surrounding districts, as well, making next year’s elections crucial for determining the balance of power.

The federal judges found that the districts were drawn to concentrate black voters and deprive them of representation. But Cox countered in his appeal that the redistricting plan won wide bipartisan approval when it passed in 2011, including among African American legislators.

Unlike in cases involving partisan gerrymandering, where the Supreme Court has never found a state map so infected with politics that it deemed it unconstitutional, the justices routinely are called upon to examine electoral districts for racial discrimination.

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Under Supreme Court precedents, the maps can sometimes require an examination of race to make sure minorities have a chance to elect candidates of their choice. But race cannot be the predominate factor in drawing districts. In Virginia and other states, challengers have said Republicans have packed minorities into a small number of districts to make surrounding areas more hospitable to GOP candidates.

Since Virginia’s maps were last redrawn in 2011, the Supreme Court has ordered new lines for congressional districts — resulting in the election of a second African American member of Congress. In 2017, it overturned a lower court’s decision upholding the drawing of the state legislative districts at issue here and sent it back for more work under new guidelines.

The lower court reconsidered and ordered the redistricting this year.

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Gov. Ralph Northam (D) called the General Assembly into special session over the summer to work on a redistricting plan to satisfy the judges, who had set a deadline of Oct. 30. But legislators failed to come up with one that Northam would support, so the matter moved back to the court.

The judges appointed Bernard Grofman, a University of California at Irvine political science professor, as special master to oversee the drawing of new lines.

House Democrats said Tuesday that the Supreme Court’s decision doesn’t stop that process.

“The important thing is the Supreme Court hasn’t granted a stay as of right now. The district court is free to move forward with drawing the maps,” said Kathryn Gilley, communications director for the House Democratic caucus.

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Cox said he hopes the court will use this chance to clear up confusion about redistricting standards, addressing “the chaos that has resulted from a bevy of redistricting laws and court cases in this difficult and confusing area of law.”

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Deciding whether districts were drawn to give minorities fair representation, vs. packing them together to dilute influence elsewhere, is an intensive process. In the three-judge panel’s latest ruling, the majority opinion ran for 98 pages, while the dissent was 103.

Elias, the Washington attorney representing those who challenged the districts, said he believes the Supreme Court will agree with the majority. “The [lower] court was simply applying the law it got from the Supreme Court” the first time the justices considered the case in 2017, he said in an interview.

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Proving that the lower court committed “clear error” in applying the law is “close to a nearly impossible” task, he said.

Justin Levitt, a redistricting expert at Loyola Law School in Los Angeles, said the court may be more interested in a question it highlighted when agreeing to hear the case: whether Republican leaders in the House of Delegates have the legal standing to pursue the litigation.

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The state’s Democratic attorney general, Mark R. Herring, told the Supreme Court that it is his job to decide whether to continue the lawsuit and that he concluded it was better to agree with the district court’s order and redraw the lines.

“Virginia law is clear that in the commonwealth, like in most states, the ultimate authority to speak for the state in federal court rests with its elected attorney general,” Virginia Solicitor General Toby J. Heytens wrote in a brief to the court. “Having spent more than three years defending this case, the attorney general has determined that the state’s interests would best be served by bringing this long-running and expensive litigation to a close so that the unconstitutional racial gerrymanders identified in the district court’s opinion may promptly be remedied.”

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The state’s brief argues that one house of the General Assembly cannot represent the state’s position. And while individual House members have interest in where legislative lines are drawn, the House as an institution is not injured by the district court’s order, the state contends. Such injury is necessary for finding a party has legal standing to bring a lawsuit.

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Republicans disputed that in their brief to the court. Such a rule “would place state legislatures at the mercy of state executives, often of different political parties, in redistricting litigation,” wrote Washington lawyer Efrem M. Braden, representing the House. “State executives routinely abandon redistricting legislation for political reasons. . . . No precedent supports [the state’s argument] that, although any district resident can be a plaintiff, only the state executive can defend.”

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