The United States Supreme Court will hear an appeal from Virginia Republicans challenging a lower court’s decision that found 11 state House of Delegates districts were racially gerrymandered.
It was not immediately clear how the decision might affect the process of redrawing the districts by a court appointed special master, which was planned to be finished by the end of March.
The case was heard at the Supreme Court last week and set for briefing and oral arguments in the spring.
“Since June we have maintained the constitutionality of the current House of Delegates districts and continue to pursue justice in this important case,” said House Speaker Kirk Cox, R-Colonial Heights. “This redistricting plan passed with an overwhelming bipartisan majority, including the support of most African-American members in the House and Gov. Ralph Northam and was approved by President Obama’s Department of Justice after dozens of public hearings and committee meetings.”
Cox said the U.S. District Court for the Eastern District of Virginia, which has upheld the plan once and overturned it once, committed “clear legal errors that the Supreme Court will now review.”
“The case also gives the Supreme Court the opportunity to provide clear guidance and address the chaos that has resulted from a bevy of redistricting laws and court cases in this difficult and confusing area of law,” Cox said.
Cox said Republicans are “reviewing our options” for seeking a stay of the lower court’s order to redraw the districts.
“We will take the next few days to consider that and make an announcement at the appropriate time,” Cox said.
The high-profile Democratic lawyer working on the case predicted the court would reject the GOP arguments.
“This is the 3rd time SCOTUS will hear cases related to VA’s unconstitutional gerrymander,” Marc Elias tweeted. “We have prevailed in each of the first two and expect to again here. What is most important is that the voters of VA have constitutional maps in time for the 2019 statehouse elections.”
House Democrats are reviewing the Supreme Court’s decision and what it might mean for the ongoing court-ordered redistricting, a spokeswoman said. The court-appointed “special master” redrawing the lines, Bernard Grofman, is scheduled to reveal his map Dec. 7.
“The spring is way too late to get these maps redrawn,” said Kathryn Gilley, a spokeswoman for Virginia’s House Democrats. “The primaries will be in June and it’s difficult to have candidates run and talk to communities when they don’t know what districts they’re in.”
Lawmakers on both sides have said it’s important to have maps in place in time for next year’s House of Delegates elections.
“The Democrats have been suing all over the nation … and this is the Democratic attempt, to reverse, to me, the legislative process,” Cox said in an interview. “It’s really … hurt the process. So yes, there’s confusion and that confusion lies with the Democrats.”
Carl Tobias, a professor at the University of Richmond law school, said it appears likely that the Eastern District panel will move forward with redrawing the maps unless a stay is granted.
“A lot will depend on the three-judge panel. Unless the court orders them not to do any more … my reading of Judge (Robert) Payne is he wants to get it done,” Tobias said.
Typically, he said, Republicans would request the stay through the lower courts, which are likely to deny it, before seeking the stay from the Supreme Court. That would require the assent of five of the nine justices, he said.
Pushing back the process of redrawing the maps, even if the appeal is ultimately unsuccessful, could be the strategy at work.
“Delay is what helps the GOP members in the House of Delegates,” Tobias said. “If you delay long enough, then for 2019 you have the old maps, which favor the Republicans, as opposed to what the redrawn maps might do.”
By hearing the appeal, the justices will also resolve whether House Republicans have standing to bring the action — Virginia Attorney General Mark Herring’s office thinks they don’t — though Tobias thinks they likely don’t have serious concerns on that front.
“If they really doubted there was standing why would they waste their time on the merits?”
House Democratic Leader David Toscano and Caucus Chair Charniele Herring said Republicans “have spent millions of dollars in taxpayers’ money defending their unconstitutionally racially gerrymandered maps” and have a “weak claim” to intervene in the case.
“We continue to be disappointed in this waste of taxpayer money by House Republicans. Should the court rule House Republicans do not have standing, it would end any further delays in implementing new, constitutional maps for Virginia’s 2019 elections,” the lawmakers said.
“With no stay issued, there is no reason for the lower court to delay the Special Master’s drawing of new maps, allowing redistricting to move forward. Virginians deserve constitutional districts that do not dilute their voting power through racial gerrymandering. Our number one priority for the people of the Commonwealth is having constitutional maps in place in time for the next election.”
Reporter Mechelle Hankerson contributed.