The Supreme Court on Monday left in place a lower court’s decision that redraws some of Virginia’s congressional districts and creates the possibility of electing a second black U.S. House member from the commonwealth.
The justices ruled unanimously that three Virginia Republican congressmen who challenged the lower court’s decision — Reps. J. Randy Forbes, Rob Wittman and Dave Brat — do not have the necessary legal right to proceed. Without that, the court dismissed the appeal.
Democrats cheered the decision, with the head of the state party calling it a blow to “racial gerrymandering” and an advance for fair representation.
“This decision strengthens a fundamental pillar of democracy by amplifying the voices of Virginians through better representation in Congress,” Becca Slutzky, chair of the Virginia Democrats, said in a statement.
But such cases have yielded mixed results for Democrats in Virginia. They recently lost a similar challenge of state House of Delegates districts, and the GOP-controlled General Assembly is preparing for another round of congressional and state legislative redistricting in five years.
A three-judge panel last year decided that the Republican legislature had packed African American voters into the Hampton Roads-based 3rd Congressional District, which is represented by the state’s lone black congressman, Rep. Robert C. “Bobby” Scott, a Democrat.
As a result, the surrounding districts became safer for white Republican candidates.
At oral argument, the Supreme Court’s liberal justices had aggressively questioned whether the Republicans had standing to challenge the lower court’s efforts.
The three federal judges who examined the commonwealth’s plan said it veered from partisan gerrymandering aimed at protecting incumbents — for which the Supreme Court has shown a high tolerance — into racial gerrymandering, which the Constitution forbids.
The judges gave the legislature a chance to redraw the map, but lawmakers were unable to do so. So the lower court panel imposed a map of its own and redrew the boundaries in a way that hurt some incumbents and opened the way for a black candidate to run in District 4.
State Sen. A. Donald McEachin (D-Henrico), the African American chair of the state Senate Democratic Caucus and a one-time candidate for attorney general, is seeking the seat.
“An injustice has been rectified,” he said Monday. It’s important for voters to elect someone “who best represent their hopes, their ideas and their ideals and worry about the color of their skin secondarily — or not at all, actually,” he said.
Virginia declined to challenge the lower court’s map, leaving space for Republican members of Congress to step in and fight it.
Forbes and Wittman did not respond to requests for comment on Monday’s decision. The state GOP declined comment.
A Brat spokeswoman, Barbara Boland, said Monday’s decision does not address what she called the “fundamentally flawed ruling” of the divided lower court. “While the decision ends this case, nothing has changed for future [redistricting] actions elsewhere in the United States,” she said.
Because of the changes to what had been his old district, Forbes decided to run in District 2, where the incumbent was retiring. After oral argument, Forbes told the Supreme Court in a letter he would continue to run in District 2, no matter the outcome of the case.
“Given this letter, we do not see how any injury that Forbes might have suffered is likely to be redressed by a favorable judicial decision,” Justice Stephen G. Breyer wrote for the court in dismissing the appeal.
Even if true, the court said, that would be only a debatable reason to consider overturning the panel’s decision.
Quentin Kidd, a political science professor at Christopher Newport University in Newport News, said Forbes’s candidacy made it clear that the congressman expected the lower court map would probably stay in place.
“That made me understand how deeply the Republicans felt they were going to lose the case because that’s who challenged it, the Republican members of the delegation,” he said.
In the decision, Breyer wrote that Wittman and Brat, who are both seeking reelection in their current districts, “have not identified record evidence establishing their alleged harm.”
“Representatives Wittman and Brat claim . . . their districts will be flooded with Democratic voters and their chances of reelection will accordingly be reduced,” Breyer wrote. But he said the court searched the record for “any evidence” that the new plan will reduce their reelection chances, “and have found none.”
While running for another term in Congress, Wittman is also raising money to run for governor in 2017.
Because of the lack of standing, the Supreme Court did not address the central issue of the case: whether the Virginia General Assembly was motivated by protecting incumbents — the state’s congressional delegation consists of eight Republicans and three Democrats — or impermissibly used race in creating the districts.
Under the Supreme Court’s guidance and the Voting Rights Act, state lawmakers must consider the race of those who populate each district to ensure minorities have a fair shot at being represented. But lawmakers fail if they let race become the predominant issue in drawing the lines. The case is Wittman v. Personhuballah.
Voters in June will go to the polls to elect members of Congress from the revised districts.
For longtime observers of Virginia politics, the congressional lawsuit is the latest wrinkle in cyclical battles over district boundaries.
C. Douglas Smith, vice president for the Robert H. Smith Center for the Constitution at James Madison’s Montpelier, has advocated for reducing the influence of politics on the process.
“This is a fine Virginia tradition. Patrick Henry did it to James Madison in 1788,” he said. “We shouldn’t call it gerrymandering. We should call it Patrick Henry-mandering.”