The Virginia Capitol at sunrise. (Ned Oliver/ Virginia Mercury)
When the COVID-19 pandemic delayed the 2020 U.S. census, Virginia had a uniquely big problem.
As the only two states with legislative elections scheduled for 2021, Virginia and New Jersey had a more urgent need to get the new population data and start the redistricting process in order to have new political maps in time for last November’s elections.
When it became clear that wasn’t going to happen, New Jersey asked its voters in 2020 to change the constitution to officially delay its redistricting timeline. In Virginia, where constitutional amendments move slower and take two years to enact, political leaders mostly avoided the issue.
But a pending federal lawsuit seeks to force new House elections in November, which could mean back-to-back-to-back elections for the General Assembly’s narrowly divided lower chamber.
With new briefs recently filed by both sides and a ruling expected soon, here’s what the court fight is about:
Where’d the lawsuit come from?
The Virginia Constitution requires new electoral districts to be drawn every 10 years. With redistricting set to happen in 2021, the same year House members’ previous two-year terms expired, those elections were supposed to use a new map.
That didn’t happen. The 2021 elections were held on the old political map, which hadn’t been updated to reflect a decade of population changes across the state to ensure each district had roughly the same number of people. If the status quo prevails, the new map drawn by the Supreme Court of Virginia won’t be used until 2023, with a correctly proportioned House not seated until early 2024.
To many in the state’s political class, that’s not necessarily a huge problem, because, as they see it, it just means one extra election cycle on maps that were already out of alignment before 2021 due to a decade of population change. While redistricting is supposed to correct those imbalances, they argue, a slight delay due to a world-altering pandemic doesn’t change all that much. The delay puts the redrawn House on the same schedule as the state Senate, which, due to its four-year terms, already won’t have elections on its new map until 2023.
Paul Goldman, an attorney and occasional political strategist who served as Democratic Party of Virginia chairman in the early 1990s, strongly disagrees.
In a lawsuit filed last summer, before the 2021 elections, Goldman argues the state’s political leaders have taken a willy-nilly approach to what he sees as a serious matter: giving every Virginian an equal say in their government as soon as possible.
Instead of giving incumbents a pass to continue representing districts that technically shouldn’t exist, Goldman says the courts should fix it by ordering new elections in November.
A onetime aide to former Gov. Doug Wilder, Goldman describes his battle in David vs. Goliath terms as he represents himself against an array of lawyers spanning the administrations of former Attorney General Mark Herring, a Democrat, and current Attorney General Jason Miyares, a Republican.
His at-times unorthodox style has occasionally frustrated the other parties in the case, with the judge at one point chiding him for weaving references to elephants, Russians and the illusionist Harry Houdini into his legal briefs. In a response this week, attorneys for the state called some of Goldman’s claims “preposterous” and “mathematically incoherent.”
But Goldman has also won plaudits from U.S. District Judge David Novak for raising serious legal questions, and Novak has faulted the state for stalling tactics and failing to take Goldman seriously.
In an interview, Goldman said both parties are avoiding a clear voting-rights issue. Republicans are happy with the House majority they took back last year, he said, and Democrats want to put off primary battles that could be trouble for some incumbents.
“They put their interests above the people’s interests,” he said.
For now, the key issue before the court is whether Goldman’s the right person to bring the lawsuit.
Standing as the ‘whole enchilada’
Because the courts generally don’t allow just any citizen to sue on vague claims their government has failed to follow the law, Goldman has to prove he has legal standing as a Virginian harmed in some way by the 2021 elections. That issue, according to the judge overseeing the case, could be the “whole enchilada” that decides the outcome.
Lawyers for the state say Goldman can’t show he’s suffered distinct harm either as a voter or as a potential House candidate. In a new court filing this month, the state argued that, even if a legitimate legal issue exists, Goldman lacks standing because his Richmond-area House district, as it existed in 2021, had fewer people than it theoretically should, not more.
“His vote was therefore slightly overweighted, and he suffered no injury whatsoever to his individual right to vote in the 2021 election,” wrote Virginia Solicitor General Andrew Ferguson.
The state has also tried to poke holes in the suit by suggesting Goldman hasn’t proven he voted in 2021. In response, Goldman said the state’s own election records should easily verify that he did. He asked the court to compel the state to produce that evidence and other election records showing the state certified delegates to represent districts that, on paper, ceased to exist once the new districts were approved in December.
The state’s focus on how the weight of his vote compared to votes in an ideally sized House district, Goldman argues, is “mathematical malarkey.” The analysis to determine if he has standing, he says, should center on the stark population differences between actual districts, not how far off the average they might be.
“The fact others may have more or less harm does not make my harm any less constitutionally important,” Goldman wrote.
The least populated House district in the 2021 contests, located in Southside Virginia, had 67,404 people, compared to 130,192 people in the most heavily populated district based in Loudoun County. The variance between districts used last year, Goldman says, is far higher than what courts have deemed unconstitutional in past redistricting cases.
The state’s filings say the ideal House district, according to 2020 Census data, should contain 86,314 people. District 68, where Goldman lives, had 85,344 people, meaning in 2021 it had 1.12 percent fewer people than it would have under new, proportional districts.
The state used those numbers to spotlight what it calls “the strange nature of Goldman’s claim.”
“Goldman’s vote in a future election — including the special election Goldman seeks as a remedy in this case — will therefore be weighted less than his vote in the 2021 election,” the state wrote. “Goldman does not have standing to seek a remedy that would not individually benefit him.”
Goldman argues there’s a clear precedent for what he’s asking: The Cosner v. Dalton case that required the Virginia House to have elections in 1981, 1982 and 1983.
The state says there’s a big difference between that case and Goldman’s. In 1981, a federal court ruled the state’s redistricting plan unconstitutional. Because that ruling came too close to the 1981 elections that were going to be held on an unconstitutional map, the court allowed the election to proceed but ordered a new one in 1982.
“By contrast, Goldman’s alleged injury — the dilution of his vote in the 2021 general election — took place entirely in the past and will not repeat itself, because the districts have since been reapportioned,” the state wrote, arguing the case is moot because the redistricting process has already solved Goldman’s issue.
Goldman says the harm to his and others’ vote continues “with each and every action” of an improperly apportioned House. By the state’s logic, he says, there was no need for an election in 1982 if the solution was as simple as drawing a constitutional map after an unconstitutional election.
“Amazing how no one claimed that in 1982,” Goldman wrote.
In the Cosner case, the court ruled out the option of running the 1981 election based on the “substantially out of date” map drawn in 1971, a similar scenario to what ended up happening in Virginia last year.
“Allowing elections to proceed under the 1971 Act would greatly disadvantage the citizens in Virginia’s rapidly growing areas and would effect great harm to the principle of one-person, one-vote,” the court wrote.
Questions of timing
As in the Cosner case, the logistics of whether the state could realistically pull off an unplanned House election in November are also an issue in the Goldman suit. The state’s congressional midterm elections are already underway, with primary deadlines already passed and early voting for the June 21 primaries set to begin May 6.
With House candidates planning to run in 2023, the state says the courts ordering that process to happen a year earlier would be an unjustifiably chaotic intervention into Virginia elections.
Goldman has argued the state could hold late-summer primaries in time to pull off November elections. But with early voting for the general election set to begin Sept. 23, some election officials are skeptical of whether Goldman’s timeline is even workable.
In redistricting years, House primaries are held later in the summer. In 1981, long before the 45-day early voting window existed, they were held Sept. 8.
If the court rules in Goldman’s favor, it’s not clear how that argument would go with the judge, who accused Herring’s office of pursuing a premature appeal that only led to five months of lost time.
Whenever the court issues a ruling, there could be additional appeals or new plaintiffs, possibly the Loudoun County NAACP, looking to join Goldman’s fight with a stronger standing argument. Loudoun was Virginia’s fastest-growing county over the last decade, growing nearly 35 percent as Virginia’s total population grew almost 8 percent.
What about the Senate?
The Senate hasn’t been part of the legal arguments until this week, when the attorney general’s office suggested Goldman’s legal theory, if accepted, would also require Senate elections to be held 18 months early, “because Goldman interprets redistricting as dissolving current districts rather than setting the rules for the next election.”
“Such a theory defies common sense,” the state wrote.
In a response filed Tuesday, Goldman said the state was using “drive-by tactics” and urged the court not to consider the argument, since the constitutional requirement for elections on a new map in 2021 only applies to the House.
“That’s just a red herring,” Goldman said.
Both sides recently filed briefs on whether the court needs to hold oral arguments on the question of standing, or whether there’s enough agreement on the facts the court could simply issue a ruling.
Goldman said the court could weigh in again on the case as early as next week.
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