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Va. attorney general declines to appeal federal finding of racial gerrymandering

Virginia Attorney Gen. Mark Herring (D).
Virginia Attorney Gen. Mark Herring (D). (Joe Mahoney/AP)

RICHMOND — Virginia Attorney General Mark Herring said Thursday that the state will not challenge a federal ruling that 11 House of Delegates districts were created to discriminate against African American voters, and argued that federal courts should disregard an appeal filed by Republican leaders.

Va. Republicans ask U.S. Supreme Court to postpone new legislative boundaries

Herring (D) called on the General Assembly to follow the orders of a three-judge panel at the U.S. District Court for the Eastern District of Virginia and draw new district boundaries by Oct. 30.

“This finding of a race-based violation of Virginians’ right to vote should be of the utmost concern to each of us, and it demands a remedy as soon as possible,” Herring said in a press release.

The judges ruled 2 to 1 on June 26 that the House districts created in 2011 were designed with the intent of concentrating black voters, which is unconstitutional.

The Republican leadership of the House of Delegates filed a brief July 9 asking the court to hold off on requiring the new districts so they could appeal the decision to the U.S. Supreme Court.

A spokesman for House Speaker Kirk Cox (R-Colonial Heights) said Thursday that Herring’s action does not affect the GOP’s appeal of the ruling.

“This is another unfortunate example of the Attorney General trying to pick and choose which laws he defends,” Parker Slaybaugh, the House GOP spokesman, said via email. “Nothing about today’s announcement affects or delays our request for a stay with the Eastern District Court or our appeal to the Supreme Court.”

Gov. Ralph Northam (D) said it is time for Democrats and Republicans to join to redraw the districts in a nonpartisan way.

“Virginia has the opportunity to right a wrong and we should take it,” Northam said in a statement. “The Commonwealth has spent over three years and millions of dollars in the defense of unconstitutional racially gerrymandered districts and we should not waste another penny or second.”

The 11 districts are in Hampton Roads and greater Richmond. But changes to those districts could have a cascading effect, altering the demographics of some of the 22 adjacent districts. The changes could affect control of the 100-seat House of Delegates, where Democrats made huge gains last fall and whittled the Republican majority to a two-seat edge, 51-49.

The boundaries were drawn after the 2010 Census, when Republicans controlled the House and Democrats controlled the Senate. With new boundaries, Republicans took control of the Senate and extended their majority in the House — until last year’s wave of Democratic victories in reaction to an unpopular President Trump.

Herring had defended the districts in earlier court cases. The federal district court initially ruled that the House boundaries were not unconstitutional, but that finding was overturned on appeal by the U.S. Supreme Court. The high court said the lower court had not used the right standards in evaluating the case.

Herring said Thursday that after reviewing the court’s most recent 93-page decision, he thought it was unlikely that the finding would be reversed and so continuing to pay for appeals would be a waste of state resources.

Herring said his office has spent $877,000 on the case so far, and he cited press reports that the House Republicans have spent more than $4 million on attorneys of their own — funds provided by taxpayers.

“[C]ontinued litigation would not be in the best interest of the Commonwealth or its citizens and . . . an appeal to the United States Supreme Court is thus unwarranted,” Herring said in his brief with the U.S. District Court.

He argued in the brief that the attorney general’s office represents the state in such matters, and that the Republican request for a stay should be denied. Citing case law, he wrote that “the particular interests of one house of a state legislature are not synonymous with ‘the State’s interests’ as a whole.”

Under Virginia law, he said in the filing, “the ultimate authority ‘to speak for the State in federal court’ rests with the Attorney General. Having spent more than three years defending this case, the Attorney General has determined that ‘the State’s interest[s]’ would be best served by bringing this long-running and expensive litigation to a close so that the unconstitutional racial gerrymanders . . . may promptly be remedied.”