- Did the Virginia Legislature impermissibly use race as a predominant factor in creating its Third Congressional District?
- And do Republican congressmen, alleging that the redistricting process hurt them politically, have standing to challenge the ruling that struck down the original redistricting plan?
In 2012, Virginia’s congressional redistricting plan increased the Third Congressional District’s black voting-age population from 53.1 percent to 56.3 percent. The Supreme Court will consider whether the Virginia’s redistricting plan impermissibly relied on race in drawing congressional districts, and whether Republican congressmen have standing to appeal the lower court’s ruling, which struck down the original plan. The appellants in this case including Congressman Wittman contend that political considerations, not race, predominated the redistricting plan. They also argue that the Republican congressmen were injured because the redistricting plan affected their reelection chances. But several voters including Gloria Personhuballah argue that the Third District was drawn with race as the predominant factor. Personhuballah maintains that the Republican congressmen lack standing because they have not suffered any injury as a result of redistricting. This case could change who can challenge potentially discriminatory redistricting plans, and what constitutes racial gerrymandering.
Questions as Framed for the Court by the Parties
1. Did the court below err in failing to make the required finding that race rather than politics predominated in District 3, where there is no dispute that politics explains the Enacted Plan?
2. Did the court below err in relieving Plaintiffs of their burden to show an alternative plan that achieves the Legislature’s political goals, is comparably consistent with traditional districting principles, and brings about greater racial balance than the Enacted Plan?
3. Regardless of any other error, was the court below’s finding of a Shaw violation based on clearly erroneous fact-finding?
4. Did the majority err in holding that the Enacted Plan fails strict scrutiny because it increased District 3’s black voting-age population percentage above the benchmark percentage, when the undisputed evidence establishes that the increase better complies with neutral principles than would reducing the percentage and no racial bloc voting analysis would support a reduction capable of realistically securing Section 5 preclearance?
5. Do Appellants have standing to appeal where it is undisputed that any judicial remedy will change at least one district represented by an Appellant and harm that Appellant’s re-election chances and interests as a Republican voter?
In 2012, the Virginia legislature approved a congressional districting plan (the “2012 plan”). See Page v. Virginia State Bd. of Elections, Civil Action No. 3:13cv678, 2015 WL 3604029, at *3 (E.D. Va. June 5, 2015). This plan had to comply with the Voting Rights Act of 1965 (“VRA”), which prevents states from discriminating against voters. See Id. at *1. Section 4 of the VRA (“section 4”) determines which states must comply with the VRA—that is, which states are “covered jurisdictions.” Section 5 of the VRA (“section 5”) requires certain redistricting procedures for covered jurisdictions.
Covered jurisdictions such as Virginia, which used racially discriminatory voting procedures prior to 1964, were required to submit proposed changes to their voting laws to the Department of Justice (“DOJ”). See Page, 2015 WL 3604029 at *2. The DOJ approved Virginia’s 2012 plan because it did not inhibit minority voters’ ability to elect preferred candidates. See id. at *1. The plan divided Virginia into eleven congressional districts, and increased the Third Congressional District’s (“District 3”) black voting-age population (“BVAP”) from 53.1 percent to 56.3 percent. See Id. at *4.
In June 2013, the U.S. Supreme Court decided Shelby County Alabama v. Holder. See Page, 2015 WL 3604029 at *4. There, the Court held that section 4’s coverage requirement was unconstitutional. See Id. at *2. The Court concluded that the coverage requirement was reasonable when Congress passed the VRA in 1965, but that current voting conditions did not justify requiring certain states to pre-clear their redistricting plans with the DOJ. See Id. Because section 4 was unconstitutional, the DOJ no longer had to approve Virginia’s districting plan pursuant to section 5. See Id.
In October 2013, Gloria Personhuballah and others (collectively, “Personhuballah”) brought an action against Virginia State Board of Elections officials. Several Virginia congressmen intervened in the case. Personhuballah alleged that the redrawing of District 3 was racial gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment. See Page, 2015 WL 3604029 at *4. In October 2014, the District Court for the Eastern District of Virginia held that race predominated in determining the congressional district boundaries.
The defendants (collectively, “Wittman”) appealed to the Supreme Court, which vacated and remanded the case for reconsideration in light of Alabama Legislative Black Caucus v. Alabama. See Page, 2015 WL 3604029 at *2, *5. There, the Court held that courts must consider whether legislatures valued racial factors more than nonracial ones in choosing which voters to allocate to a district. See Id. at *5. The Court also held that section 5 of the VRA “does not require a covered jurisdiction to maintain a particular numerical minority percentage;” rather, it “requires jurisdiction[s] to maintain a minority’s ability to elect a preferred candidate. See Id. at *6 (internal quotation marks omitted).
On remand, the district court required the redistricting plan to meet a strict scrutiny standard, meaning that Virginia had to show its use of race was narrowly tailored to serve a compelling government interest. See Page v. Virginia State Bd. of Elections, 2015 WL 3604029 at *16. The district court held that the redistricting plan for District 3 was unconstitutional, because racial considerations predominated in developing the plan and it was not narrowly tailored to serve a compelling government interest. See Id. at *16, *19. The district court required the state to redraw the districts in compliance with the order. See Id. at *19.
Wittman petitioned the Supreme Court for writ of certiorari, which the Court granted on June 22, 2015.
Wittman contends that political rather than racial considerations predominated the crafting of the 2012 plan. The legislature developed the plan to protect incumbents, a permissible redistricting consideration. Wittman also maintains that the interveners have standing because the district court’s judgment imposes changes that will affect their reelection chances. However, Personhuballah asserts that race rather than politics predominated in crafting the redistricting plan. And Personhuballah asserts that the Republican congressmen lack standing because none of the congressmen live in District 3, represent it, or conduct elections in it.
DID RACE CONSIDERATIONS PREDOMINATE THE 2012 PLAN?
Wittman argues that the lower court failed to address whether politics, rather than race, predominated in the creation of the 2012 plan. Wittman maintains that the Court requires plaintiffs to show race had a “direct and significant impact” on redistricting. See Brief for Appellants, Wittman, et al. at 25, 34. Wittman asserts that the legislature developed the redistricting plan to protect incumbents, which the Court has recognized as a “traditional principle” of districting. See Id. at 25, 34. The legislative history and electoral data demonstrates that delegates frequently stated that the plan’s goal was to protect all incumbents, not just Republican incumbents. See Id. at 35. Wittman asserts that alternative redistricting plans failed to protect all incumbents. See Id. at 35. Changing District 3’s racial composition would have moved Democrats into the surrounding districts, which would have impaired the re-election chances of Republican incumbents. See id. at 36. Wittman contends that the legislature maintained the district’s core, while making small politically motivated changes to the district’s population. The legislature treated white-majority districts in the same manner. See Id. at 36–37 Wittman concludes that the redistricting plan’s racial effect is virtually equal to the redistricting plan’s political effect. See Id.
However, Personhuballah contends that race considerations permeated the redistricting plan. See Brief for Appellees, Personhuballah at 20. Personhuballah notes that Delegate Janis, who led the redistricting process, stated that District 3’s racial composition was his “paramount” concern. See id. at 20. Personhuballah contends that the Virginia Senate’s official redistricting criteria stated that racial considerations should be given priority if there were a conflict among different criteria. See id. at 21. Additionally, Personhuballah argues that the Virginia legislature adopted a racial threshold, a 55-percent BVAP floor, to obtain the DOJ’s approval of its redistricting plan. See id. at 27. Personhuballah contends that this threshold is impermissible. The Court struck down a mechanical racial threshold in Alabama, because the threshold illustrated that race predominated in that case’s redistricting plan. See id.
Does the 2012 Plan survive strict scrutiny?
Assuming race considerations dominated the redistricting process, the Court will apply strict scrutiny to the 2012 plan to determine if it is constitutional. The plan will survive strict scrutiny if it was narrowly tailored to achieving a compelling government interest. The parties primarily dispute whether the plan was narrowly tailored to achieving VRA compliance.
Wittman contends that even strict scrutiny permits the Virginia legislature to choose among a range of VRA-compliant redistricting options. See Brief for Appellants at 54. Wittman explains that the legislature had good reason to believe that the 2012 plan satisfied the VRA, because it more effectively complied with race-neutral redistricting principles than alternative plans. See Id. at 55-56. Wittman concludes that the 2012 plan “reduced conflicts between racial and neutral principles” and thus should survive strict scrutiny. See Id. at 55.
But the Virginia State Board of Elections maintains that the legislature’s 55-percent BVAP floor was not tailored to protect minority-voting rights. See Brief for Appellees, Virginia State Board of Elections at 27–28. The Board explains that District 3 had been a majority-minority district for twenty years, so the floor was unnecessary to prevent retrogression. See Id. at 66–67. Moreover, the legislature, in relying on a mechanical threshold, failed to consider whether the threshold would preserve minorities’ ability to elect preferred candidates. See Id. at 54. The Virginia State Board of Elections concludes that because the floor was unnecessary to protect minority-voting rights, the redistricting plan was not narrowly tailored. See Id. at 28.
DO THE REPUBLICAN CONGRESSMEN HAVE STANDING?
Wittman argues that the Republican congressmen have standing. See Brief for Appellants at 57. The lower court’s judgment causes the congressmen “direct, specific, and concrete injury” because it imposes changes to district boundaries that will force at least one congressman into a majority-Democratic district. This imposition will harm the congressman’s reelection chances. See Id. at 57. Wittman explains that the judgment’s remedy will move black, Democratic voters out of District 3 and into the surrounding Republican districts. See Id. The remedy will move an equal number of non-black, Republican voters into District 3. See Id. Accordingly, the remedy will change at least one district where a congressman was previously elected. See Id. at 57–58. Wittman asserts that the Court has upheld standing in the electoral context for injuries identical and less significant than the congressmen’s injury. See Id. at 58.
However, Personhuballah notes that none of the congressmen live, represent, or conduct elections in District 3. See Brief for Appellees, Personhuballah at 8. A threat to the congressmen’s electoral prospects in the surrounding districts is too speculative to establish standing. See Id. Because the congressmen do not have legal authority over redistricting, the district court’s judgment did not order the congressmen to take action or refrain from taking action, and thus could not injure them. See Id. at 10. And Personhuballah asserts that the alleged injury is not concrete or traceable to redistricting, because many factors impact the congressmen’s re-election chances. See id. at 10–11. Personhuballah contends that voters cannot challenge racial gerrymandering unless they live in the challenged district, so politicians should not be able to defend racial gerrymandering if they do not represent the district. See Id. at 15. To show injury, Personhuballah argues that the congressmen must “win a primary election,” “lose in the general election to a Democrat,” and prove that they lost solely because of the district court’s imposed redistricting plan. See Id. at 17.
The Court will decide whether racial considerations were the Virginia legislature’s predominant motivation in drawing the state’s Third Congressional District. The Court will also decide whether several Virginia congressmen, who allege that their re-election chances have been harmed by the redistricting process, have standing to intervene in this case. See Brief for Appellants, Robert J. Wittman, et al, at ii; See Brief for Appellees, Virginia State Board of Elections, at i. The Court’s decision will affect voters’ ability to challenge discriminatory voting practices, and politicians’ standing in redistricting cases.
WHAT ARE THE IMPLICATIONS OF GRANTING THE POLITICIANS STANDING?
Several congressmen from other Virginia congressional districts intervened in this suit. Amici supporting Personhuballah argue that Wittman lacks standing to appeal. See Brief Amicus for the United States, in Support of Appellees at 11; Amicus Curiae Brief of the Virginia State Conference of the NAACP (“Virginia State Conference”), in Support of Appellees at 8. The United States worries that politicians, if able to establish standing, will be driven by their own political aspirations instead of their constituents’ interests. See Brief Amicus for the United States at 13. Moreover, the Virginia State Conference of the NAACP argues that redistricting litigation and race relations in politics will be harmed if the congressmen have standing “to object to the addition of black voters to their districts.” See Amicus Curiae Brief of the Virginia State Conference at 9.
Wittman suggests that an “incumbent in an adjacent district  alleging injury [is] no different than an incumbent residing in (and defending) the allegedly gerrymandered district, who concededly would have standing to appeal an adverse judgment.” See Brief for Appellants, Robert Wittman, et al. at 57–62. Wittman worries that denying these congressmen standing will deprive them of an opportunity simply because of their location. See Id.
The Court will determine whether race predominated the 2012 plan. See Brief for Appellants Robert J. Wittman et. al at ii. The Court will also decide whether Republican congressmen have standing to challenge the district court’s ruling that race predominated in crafting the districting plan. See Id. Wittman contends that the Republican congressmen have standing because changing the district’s boundaries will force at least one congressman into a Democratic district; thus, this imposition will damage that congressmen’s reelection odds. See Id. at 57. Wittman also contends that race did not predominated in crafting the districting plan because the legislature developed the plan to protect incumbents. See Id. at 34. Personhuballah asserts that the Republican congressmen lack standing because none of the Congressmen live in District 3, represent District 3, or draw or conduct elections in District 3. See Brief for Appellees Gloria Personhuballah and James Farkas at 8. Additionally, Personhuballah asserts that race rather than politics predominated in crafting the districting plan. See Id. at 20.
- Julian Notaro, Race-Based Gerrymandering Comes to the Court, The American Prospect (Jan. 20, 2016).
- Greg Stohr, Republicans Get U.S. Supreme Court Hearing on Virginia Voting Map, Bloomberg (Nov. 13, 2015).
- Supreme Court to Decide Virginia Redistricting Case, Al Jazeera America (Nov. 13, 2015).