The only thing clear by the end of the hour-long argument was the case’s importance, not just for Virginia but for the precedent it might set for other states.
The Supreme Court has already considered the 2011 legislative map once. It told a lower court to consider whether some of the districts for the Virginia House of Delegates were racially gerrymandered, by grouping black voters together in a way that left white candidates able to prevail elsewhere. As a practical matter, such a result would benefit Republicans.
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.
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. (The Senate districts are not a part of the case.)
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. And the party that controls the General Assembly will oversee the next statewide redistricting effort in 2021, following next year’s census.
The first issue for the court was whether the Republican-led House had the legal standing to appeal the panel’s decision. Virginia’s governor and attorney general, who are Democrats, say it does not, and the Department of Justice agreed with them.
So, it seemed, did Justices Ruth Bader Ginsburg and Sonia Sotomayor.
“It isn’t even the legislative branch; it’s one house of the legislature” appealing the lower-court ruling, Ginsburg told Washington lawyer Paul D. Clement, representing the House Republicans.
Clement said that because the case involves only House districts, the House was the perfect party to bring the appeal.
Sotomayor disagreed. The redistricting law “doesn’t belong to the House,” she said. “At best, it belongs to the legislature as a whole or to the government, the people of Virginia.”
Morgan L. Ratner, representing the Justice Department, said the Virginia attorney general gets to decide whether the commonwealth appeals the lower court’s ruling.
“The House as an institution isn’t harmed by changes to individual district lines, and while states can authorize legislatures to represent them in court, Virginia hasn’t done so,” she said.
Justice Samuel A. Alito Jr. said he wasn’t sure about that. Previous Virginia executives, then Republican, may have ceded ground to the legislature to represent the commonwealth.
“I would be very uncomfortable trying to decide whether, as a matter of Virginia law, anybody other than the attorney general can ever represent the commonwealth,” Alito said, suggesting the court might want to refer that question to the Virginia Supreme Court.
As a practical matter, that added legal step would likely mean that a new map could not be in place for the fall’s election.
Conservative justices seemed skeptical of the lower court’s decision that the House leadership had taken race into consideration too much. They had to abide by the Voting Rights Act admonition that some districts be drawn to give minority communities a voice, Justice Brett M. Kavanaugh noted.
Otherwise, “they would be hammered from the other side, saying you are discriminating against African American voters because you’re not giving the voters a sufficient opportunity to elect the candidate of their choice,” he said.
But Marc E. Elias, representing black voters who challenged the plan, said House Republicans could not defend the districts they drew. “The truth is that all the state of Virginia had to do was come in with a good reason, and in this case, they came in with no reason,” he said.
Because the state did not draw a new map after the decision by the panel of judges in the U.S. District Court for the Eastern District of Virginia, the judges had an outside expert draw a new map.
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.
The case is Virginia House of Delegates v. Bethune-Hill.
Gregory S. Schneider contributed to this report.