Setting new timetable in Virginia election lawsuit, judge rips state for legal ‘mess’

A federal judge on Monday accused former Attorney General Mark Herring’s office of mishandling a closely watched lawsuit seeking to force new House of Delegates elections this year, saying the state didn’t take Democratic activist Paul Goldman’s claims seriously enough last year and has forced arcane legal wrangling to go on for “way too long.”

“This case has been a mess from your predecessors,” Judge David J. Novak of the U.S. Eastern District Court of Virginia told attorneys working on behalf of new Attorney General Jason Miyares. “It was totally handled wrong.”

Goldman, a former aide to ex-Gov. Doug Wilder and onetime chairman of the Democratic Party of Virginia, filed the lawsuit last summer. He contends the state’s delayed redistricting process should require another round of House elections this year on new maps that properly reflect the state’s population shifts. All 100 House seats are up for election again in 2023, but Goldman argues incumbents shouldn’t be allowed to serve full, two-year terms based on old districts with dramatically different population sizes that conflict with the principle that all votes should count equally.

The prospect of House elections in 2021, 2022 and 2023 has been on the table since 2020, when it became clear the COVID-19 pandemic was going to delay the arrival of new census data Virginia needed to redraw its General Assembly and congressional districts last year. Those maps, which were ultimately approved by the Supreme Court of Virginia after the state’s bipartisan redistricting commission failed to agree on a plan, were not completed until after the November elections that saw House Republicans regain a majority running on the old district lines.

Herring’s office sought to have the lawsuit dismissed on largely technical grounds. But Novak said Monday the state failed to adequately respond to Goldman’s legal arguments and threw the case into procedural confusion. Acknowledging he was “venting” from the bench, the judge said Goldman, while at times taking “artful” detours into unrelated matters, is making a substantive argument.

“He knows what he’s talking about. And they didn’t take him seriously. And that was a mistake,” Novak said, adding “we lost five months because of some not very good decision-making” from the previous attorney general’s office. Herring’s office had already appealed part of the case to the 4th U.S. Circuit Court of Appeals. Last week, the appellate court returned the case to the lower court.

With nearly a quarter of 2022 gone, the federal courts have not yet issued a ruling on the pivotal question of whether Goldman has standing to bring the case as a Virginia voter and prospective House candidate. Questions of standing typically involve debate over whether a plaintiff can credibly claim to have been harmed by the target of a lawsuit.

Novak gave the two sides until mid-April to file new briefs addressing the standing issue, including whether it should be heard by Novak alone or a three-judge panel also involved in the case.

Speaking to reporters after the hearing, Goldman said he’s confident House elections can still happen this year as long as the case is decided over the summer. That would still allow time for House primaries in September, he said.

Goldman faulted the state’s political establishment for using delay tactics to avoid what he sees as a clear constitutional problem, Republicans are happy with the narrow House majority they won last year, Goldman said, and Democrats don’t want to run on new maps that could force some incumbents from office a year earlier than expected.

“They are under oath obligated to defend our rights,” Goldman said. “All they’re doing is trying to protect the interests of incumbents.”

Several voting-rights groups, including the Virginia NAACP and the ACLU of Virginia, have recently come out in favor of new elections this year.

Michelle C. Thomas, president of the Loudoun County NAACP branch, said her group is still reviewing the issue after its effort to join Goldman’s lawsuit was denied. Thomas, who was in the courtroom for Monday’s hearing, said fast-growing Loudoun is home to some of the most populous legislative districts in the state, which denies Loudoun’s minority residents fair representation in the General Assembly.

“Every one of these residents are disenfranchised,” Thomas said.

It’s unclear if the NAACP or another group will pursue a second lawsuit while Goldman’s case is pending.

Novak encouraged Goldman to zero in on arguing why he has standing to sue, saying that question “could be the whole enchilada here.”

“I’m confident,” Goldman replied.

“I’m sure you are,” the judge said.