The Supreme Court on Monday seemed likely to leave 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 seemed concerned that Virginia’s Republican-led 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.
The court’s liberal justices also questioned whether former and current Republican congressmen had the legal right — which is called standing — to challenge the lower court’s redrawing of the map in a way that hurts some incumbents and encourages a black candidate to run in District 4.
Justice Sonia Sotomayor told Washington lawyer Michael A. Carvin that his clients were asking for a rule that says “every change that affects an incumbent gives the incumbent the right to challenge the line of change . . . an incumbency-protection standing rule.”
Because of the death of Justice Antonin Scalia, the court is operating with only eight members. Even a tie would uphold the lower court’s decision, which has scrambled Virginia politics and could mean a change in the state’s congressional delegation.
The hearing lasted more than an hour and displayed the intricacies and high political stakes that come when states divide their residents into congressional districts. Carvin generally represents Republicans and his adversary and fellow Washington lawyer Marc E. Elias represents Democrats, and their Virginia battle is being replicated in courts around the country.
Under the Supreme Court’s somewhat hazy 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 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 legislators were unable to do so. So the panel imposed a map of its own. In a separate proceeding, the Supreme Court refused to stay that plan, and voters in June will go to the polls to elect members of Congress from the revised districts.
Carvin told the court that when redrawing the map after the 2010 Census, the Virginia General Assembly was motivated by protecting incumbents — the state’s congressional delegation consisted of eight Republicans and three Democrats — and preserving core areas of existing districts.
It was a success, he said. “Every incumbent was reelected.”
But former state delegate Bill Janis (R-Glen Allen), who devised the commonwealth’s congressional map, testified that he did not consider partisan implications of his plan. He said he decided the voting-age black population in Scott’s district should be increased to at least 55 percent to comply with the Voting Rights Act.
“That’s what the drafter of the plan said,” said Justice Ruth Bader Ginsburg. “He didn’t take into account partisan performance.”
Chief Justice John G. Roberts Jr. said that did not mean that the entire legislature was motivated by racial decision-making. “How do you show what the motive of the legislature was?” he asked.
But Justice Anthony M. Kennedy was concerned. Even if politics motivates the line-drawing, Kennedy said, “May we then use race to move people from one district to another, simply because that’s the easiest way to do it? We know that this is a race that votes strongly for a particular party, so we can use race for this ultimate neutral purpose?”
Carvin said no, but that race and politics in this case were “co-extensive.”
Justice Elena Kagan said that did not matter. “Does the fact that it also has political benefits, does that insulate these line drawers from what you would think is the obvious conclusion, which is this is unconstitutional conduct?” she asked.
Representing Virginia, state Solicitor General Stuart A. Raphael said the commonwealth originally defended the legislature’s work, but now believes the decision of the lower court should be accepted.
“Did anything else happen between the time when your office took the prior position and your appearance here today?” asked Justice Samuel A. Alito Jr., to laughter.
His obvious reference was that the state’s governor and attorney general are now Democrats, where Republicans previously held the jobs.
Although Raphael supported the lower court, he also said that, on the question of standing, Rep. J. Randy Forbes (R), who currently represents District 4, should be able to challenge the lower court’s decision to radically change his district. Forbes currently has decided to run for the seat being vacated by Rep. Scott Rigell (R).
But Elias, and Deputy Solicitor General Ian H. Gershengorn, representing the federal government, said he should not. They said Kagan and other justices were correct to question whether a member of Congress has a legally recognized right to challenge unfavorable changes to his district.
“Under the American system, voters choose candidates,” said Elias. “They choose their elected officials. It is not the other way around.”
The case is Wittman v. Personhuballah.