House Speaker Kirk Cox, R-Colonial Heights, and Del. Chris Jones, R-Suffolk, talk to reporters outside the U.S. Supreme Court Monday. (Robin Bravender/ For The Virginia Mercury)
WASHINGTON — The U.S. Supreme Court appeared divided over a high-stakes political gerrymandering case that could affect control of Virginia’s legislature.
The justices heard oral arguments Monday in the case of Virginia House of Delegates v. Bethune-Hill, in which the House of Delegates is appealing a lower court’s ruling that 11 districts in Virginia had been racially gerrymandered.
The justices focused on two questions that will determine the outcome of the case: Whether the House of Delegates has legal standing to appeal the lower court’s ruling and whether the districts in question violated the Constitution by discriminating against black voters.
If the justices find that the House doesn’t have standing, they could dismiss the case without addressing the thornier issues of the merits. Some justices signaled that they were inclined to do just that.
“If we rule in your favor and say that every House that … creates a plan has standing, we invite complete discord in a state over who represents the interests of that law,” said Justice Sonia Sotomayor, an appointee of President Barack Obama.
To show that they have standing, the Virginia House must show that it has suffered a concrete injury. House lawmakers argue that they’ve indeed suffered because they lost their redistricting authority and members “now represent unlawful districts and will face re-election in different court-drawn districts.”
The challenge to the districts was initially filed by a group of African-American voters represented by Democratic lawyer Marc Elias. They argue that the House lawmakers haven’t shown standing and “have offered shifting descriptions of their supposed injury since initiating this appeal.”
Justice Ruth Bader Ginsburg, appointed by President Bill Clinton, stressed Monday that it wasn’t even the full legislative branch challenging the lower court’s decision.
“It’s one house of the legislature,” she said. She noted that districts shift every time a new census comes out, suggesting that lawmakers aren’t injured by changing lines.
Mark Herring, Virginia’s Democratic attorney general, has made the case that his office — not the House — is responsible for representing the state in court. Herring didn’t appeal the lower court ruling, and is urging the Supreme Court to reject the House’s appeal. President Donald Trump’s administration, too, argues that the House lacks standing in the case.
At least one justice, George W. Bush-appointee Samuel Alito, said that while the lawmakers must show concrete injury, “it doesn’t have to be big.”
Alito said, “It’s hard for me to believe that doesn’t cost them one dime.”
Maybe they “publish a map showing the current districts, and they’d have to publish a different map. Maybe they have to print new stationery. Maybe they have to print new labels for offices or for the desks of the delegates. Injury in fact, as I said, does not require a lot of injury.”
The justices — including Chief Justice John Roberts, another Bush appointee — also went beyond the standing question to press attorneys on the merits of the case and whether race was the predominant factor in drawing the challenged districts.
Sotomayor pointed to two districts — the 92nd and 95th — where lines were drawn “in the middle of a street with black houses on one side and white houses on another side,” she said. “It’s hard for me to imagine how race isn’t predominant when they’re getting down to the nitty-gritty on the basis of what side of a street you live on.”
Justice Brett Kavanaugh, a Trump appointee, said that if lawmakers had included a lower percentage of African-American voters in the districts, “they would have been hammered from the other side, saying you are discriminating against African-American voters because you’re not giving the voters a sufficient opportunity to elect the candidate of their choice.”
Virginia officials on both sides of the court battle attended the arguments in Washington.
House Speaker Kirk Cox, R-Colonial Heights, and Del. Chris Jones, R-Suffolk, told reporters outside the court they were encouraged by the direction of the arguments.
Cox said he felt good about how quickly the justices pivoted to discussing the merits of the case. “Democrats sued all over the nation, and I think part of this was an attempt to overturn legitimate elections,” Cox said.
And while he said he felt targeted by Democrats seeking to alter the district lines, he said he’s prepared to run in either his old or his new district. “I’m very confident I can win my district.”
Herring told reporters, “I chose not to appeal the trial judges’ ruling because of those detailed factual findings that we should not have racially gerrymandered districts any longer.”
He added, “Nothing I heard today changes my belief that it’s time for this case to come to an end and that we implement fair and constitutional and representative districts for the next elections.”
A decision in the case is expected by June, when the court will wrap up its term.
Meanwhile, new district lines, favorable to Democrats, are moving forward in Virginia.
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