In 2011, the Virginia General Assembly passed redistricting plans as constitutionally required following the 2010 census. The House of Delegates’ plan was passed on a bipartisan basis, in Virginia, with a supermajority vote, including overwhelming support from the House Legislative Black Caucus and the vote of Virginia Gov. Ralph Northam (D), who was then a state senator.
With the support of African American legislators, the House of Delegates plan included 12 “majority-minority” districts. The map was pre-cleared under Section 5 of the Voting Rights Act by President Obama’s Justice Department and put in place for the 2011 legislative elections. The map has been used in every election since.
After two elections under the approved map, Democrats brought suit in federal court claiming it was an unconstitutional, racial gerrymander. What had changed? That year, former Democratic National Committee chair Terry McAuliffe replaced Robert F. McDonnell (R) as governor. If the plaintiffs could invalidate the map, the new Democratic governor could veto any new plan.
In a 2-1 decision, the lower court panel, consisting of one Court of Appeals judge and two U.S. District Court judges, upheld all 12 districts, finding that race did not “predominate” in drawing 11 of the districts. In one, District 75, it found that race did predominate but that its use was constitutional, because it was narrowly tailored to comply with the Voting Rights Act’s mandate that any new map not diminish the number of districts where minority groups could elect the preferred candidates of their choice.
On direct appeal, the Supreme Court upheld District 75, but remanded to the lower court for further consideration of the threshold question of whether race predominated in drawing the other 11. The three-judge lower court, which previously held all 12 districts constitutional, then reversed course and declared all 11 remaining districts unconstitutional. Why the change of heart? One of the two federal judges who previously upheld the districts had retired and was replaced by an Obama appointee, tilting the panel in the Democrats’ favor.
After Northam announced he would not sign off on any new map, the lower court panel then appointed a professor from the University of California Irvine to assume the task constitutionally entrusted to Virginia’s legislators.
While only 11 House districts were ruled unconstitutional, the professor’s plan chosen by the lower court panel changes more than twice that number and includes many of the alleged infirmities identified by the lower court, splitting specific neighborhoods along predominantly racial lines and ignoring traditional districting criteria. Naturally, the byproduct of all these changes is a map that is far more favorable to Democrats. At least three of the redrawn districts now are held by senior Republicans, including House Speaker Kirk Cox.
On the remand, the district court found that all 12 majority-minority districts were drawn each with a black voting-age population of 55 percent or higher and that they were purposefully drawn this way to achieve that target, which, it concluded, was wrong even though all concede the General Assembly drew these districts in a good-faith effort to comply with the Voting Rights Act. Incredibly, the professor’s plan, embraced by this same court, requires all remedial districts to have a black voting age population below 55 percent.
Despite how Democrats have portrayed it, this has never been a case about too much race in redistricting; it is about a naked power grab by Democrats. Like Goldilocks, they want just the right amount of race to be used to elect the maximum number of Democrats to office — no more, no less — even if it means fewer elected minorities overall. And the stakes here are high. The Virginia House of Delegates is split 51-49, so the court-drawn map could effectively hand the House of Delegates to the Democrats in the next election.
This is just the latest effort by Democrats in a coordinated, national strategy of using the courts to overturn Republican-drawn maps and tip the scales in their political favor. For decades, Democrats largely controlled the redistricting process in the states, maximizing that power to their own advantage. That began to change when Republicans flipped 21 state legislative chambers in 2010 and went on to flip nearly 1,000 state legislative seats in the Obama era. Since then, Democrats have deployed similar tactics in other states, including North Carolina, Wisconsin and, perhaps most egregiously, Pennsylvania, where the partisan-elected, Democratic-controlled state Supreme Court replaced the state’s congressional map with one that is even more favorable to Democrats than what the liberal plaintiffs there had proposed.
Even so, suing on racial grounds over a redistricting plan that was passed with overwhelming bipartisan support, including from the House Legislative Black Caucus, that was approved by the Justice Department and that had already been in effect for years might be their most transparent ploy yet.
The Supreme Court should see this case for what it is and uphold the bipartisan legislative Virginia map adopted in 2011. It should not let two Obama-appointed judges and a college professor from California hand Democrats a court-assisted majority.