The Supreme Court on Monday told a federal judicial panel in Virginia to take another look at its decision that lawmakers improperly packed minority voters into one congressional district.
The court sent the case back to the U.S. District Court for the Eastern District of Virginia without comment, following its decision last week in a similar case from Alabama.
In the Alabama case, the court ruled 5 to 4 that lower court judges should look more closely at whether lawmakers made race the predominate factor in drawing new district lines after the 2010 census.
In Virginia, a three-judge federal district court panel ruled in October that the Virginia General Assembly must draw new congressional maps, because the current plan concentrates African American voters into a single district at the expense of their influence elsewhere.
Both the Virginia and Alabama cases hinge on when it’s legal to use race to draw district boundaries.
A lawyer for the plaintiffs in the Virginia case, along with several independent experts, said it is unlikely that the federal court in Virginia will make a different ruling this time around.
“I wouldn’t expect anything to change,” said Marc Elias, who represented two voters from the district where the redistricting in question took place.
Justin Levitt, a professor at Loyola Law School in Los Angeles who runs a blog about redistricting, said nothing in the Supreme Court’s ruling in the Alabama case gives the Virginia court any reason to alter its original ruling.
“Alabama strengthened the trial courts’ decision against Virginia,” he said. “Essentially the accusations against Virginia that the trial court found to be true are really, really, really close to the accusations against Alabama.”
But Michael A. Carvin, who is representing former House Majority Leader Eric Cantor and Virginia’s Republican congressional delegation in their appeal of the lower court’s decision, drew the opposite conclusion. “We’ve always been confident in our defense and there’s no reason to think differently now,” Carvin said.
The Virginia court’s decision focused on the state’s lone black-majority district, the 3rd Congressional District, which stretches from Richmond to Hampton Roads. It is currently represented by Rep. Robert C. “Bobby” Scott, one of three Democrats in the commonwealth’s 11-member congressional delegation.
When lawmakers redrew the 3rd district’s boundaries, they increased the percentage of the voting population that was African American from 53 percent to 56 percent.
The courts have said that when drawing maps lawmakers can treat voters differently on the basis of race in a few instances, such as complying with the Voting Rights Act, making up for specific past discrimination and achieving diversity in higher education, Levitt said.
But he added that the court has said that protecting incumbents or achieving a political goal alone are not good enough reasons. Cases on similar grounds are pending in South Carolina, North Carolina, Texas and Florida.
“Administratively, it’s easier to use the blunt calculation of race to peg to certain percentages — but that’s never made it okay,” Levitt said. “And it looks like a bunch of states fell prey to this without considering the facts on the ground that might make it necessary to comply with the Voting Rights Act in order to ensure real political opportunity.”
Quentin Kidd, a political science professor at Christopher Newport University, said a do-over on the Virginia case and the associated appeals could mean the state’s congressional districts won’t be redrawn for some time.
“I would have a hard time seeing how one federal court in Virginia that had already found the 3rd district to be gerrymandering could look at the Supreme Court ruling in Alabama and not see the Virginia district as gerrymandered,” Kidd said.
The Virginia court has yet to layout a timeline for its reconsideration of the case.
The Virginia and Alabama cases could also influence judges in a second case brought by Elias in Virginia that challenges 12 Virginia House districts. That case mirrors the Virginia congressional case and the Alabama case, in that plaintiffs argue that lawmakers violated the constitution when they “packed” black voters into several districts and diluted their influence elsewhere.
Del. William J. Howell (R-Stafford), the speaker of the Virginia House of Delegates, has said that he is confident the state’s legislative map would withstand legal challenge. He declined comment on Monday’s move by the high court.