Virginia House Appeals Redistricting Case to United States Supreme Court

Press release from Speaker Cox’s office….

Virginia House of Delegates Speaker Kirk Cox on Tuesday filed a formal appeal to the United States Supreme Court in his capacity as Intervenor-Defendant in Bethune Hill v. Virginia State Board of Elections, after the District Court for the Eastern District of Virginia reversed its previous opinion and found 11 House districts unconstitutional.

The Jurisdictional Statement presents six questions to the Supreme Court for review, argues that the Court committed clear legal error, argues that race was not the predominant factor in the drawing of the 11 challenged districts, and argues that the challenged districts are narrowly tailored under the Voting Rights Act and are therefore constitutional.  A full copy of the appeal can be found here.

“While we are naturally disappointed the Court denied our request for a stay, we will continue to pursue all legal remedies available to uphold the Constitutional redistricting plan adopted in 2011 by an overwhelming bipartisan majority, including the House Legislative Black Caucus and then-Senator Northam,” said Speaker Cox. “The Eastern District of Virginia has once upheld the plan and once overturned it, the second time committing clear legal errors that the Supreme Court should review. A bevy of redistricting laws and court cases have created untenable conflict that demands clear guidance from the Supreme Court. Our appeal seeks both to overturn the district court’s legal errors and establish clarity in this difficult and confusing area of law.

Key Excerpts

“In 2011, the Virginia General Assembly passed a districting plan for its House of Delegates districts that garnered overwhelming bipartisan support including from all but two members of the House Black Caucus. Like all Virginia House plans since 1991, the 2011 plan contained 12 majority-black districts.”

“[T]he district court did not apply [a] holistic standard. It looked at only some lines, ignored others, weighed only race-related evidence, ignored all other evidence, and did not use ‘demanding’ scrutiny, Easley v. Cromartie, 532 U.S. 234, 241 (2001) (quotations omitted), to distinguish run-of-the-mill VRA compliance from suspect racial sorting. The court’s errors infected its analysis of each Challenged District.”

“The district court committed clear error in weighing the evidence. It is implausible that every House fact witness was dishonest, that every House expert used bad methodology, that race predominated in every Challenged District, and that no Challenged District needed to be above 55% BVAP under VRA §5—and, at the same time, that every fact witness for Plaintiffs was honest and accurate, every expert witness for Plaintiffs used reliable methodology, and every factual inference was in their favor. In other words, the district court spurned a ‘holistic’ analysis weighing the ‘race-neutral explanations for specific district lines’ it conceded exist, J.S.App.82, considered only racial explanations, and transparently attempted to shield its one-sided conclusions from review by labeling them findings of fact and credibility. That is paradigmatic clear error.”

“That was not a choice to deny equal protection over a choice to afford it. Nor was it a choice to wade into an area of suspect classifications over a choice to avoid them altogether. Rather, faced with the federal-law imperative to preserve minority representation— against a presumption of retrogression—the House made a legitimate ‘political decision’ regarding the ‘effective exercise of the franchise’ as to which there may be ‘an infinite number’ of alternatives. Holder v. Hall, 512 U.S. 874, 898, 900 (1994) (Thomas, J., concurring). This case is about coopting the federal courts to reverse that informed political decision and hand a political victory to the small minority of delegates who had differing political goals.”