[EL] Lessons from “Va. Republicans push re-drawn district map through Senate”

[Justin Levitt]

One (very) friendly clarification to Michael's post, which talks about 
all the right issues.

Per his second point, about the Virginia constitutional language, the 
provision is as follows: "Members of the House of Representatives of the 
United States and members of the Senate and of the House of Delegates of 
the General Assembly shall be elected from electoral districts 
established by the General Assembly. . . . The General Assembly shall 
reapportion the Commonwealth into electoral districts in accordance with 
this section in the year 2011 and every ten years thereafter.  Any such 
decennial reapportionment law shall take effect immediately and not be 
subject to the limitations contained in [the provision of the 
constitution setting default effective dates.]"

Michael and I canvassed laws like this in our article about state 
constitutional constraints on re-redistricting 
<http://ssrn.com/abstract=986081>; as he says, there are some 
indications of a potential limit on re-redistricting ("shall reapportion 
. . . in the year 2011 and every ten years thereafter," the "decennial 
reapportionment law"), but these "expressio unius" cases are 
particularly tricky exercises in statutory interpretation.  Some courts 
have interpreted similar language to preclude mid-decade redistricting; 
others have come to the opposite conclusion, and Virginia courts haven't 
yet weighed in.

Michael mentioned the litigation over the congressional districts, which 
concerned this provision but not, I think, the re-redistricting issue.  
That case (/Little v. Va. Board of Elections/, here 
<http://redistricting.lls.edu/cases-VA.php#VA>) asked whether the 
mandate to draw in 2011 precluded the legislature's drawing 
congressional districts in 2012 -- whether, in essence, legislative 
default in 2011 divested the legislature of power to draw at a later 
point.  As Michael mentioned, the state court said "no" 
<http://redistricting.lls.edu/files/VA%20little%2020120227%20decision.pdf> 
-- the legislature has a continuing duty, and may perform in 2012 even 
if it fails to do so in 2011.  But the court specifically reserved the 
issue of a mid-decade redistricting (footnote 2 of the opinion), and 
didn't at all address the issue of a re-redistricting, after the 
legislature had already discharged its duty.

The state constitutional provision may be the same in the congressional 
context and the state Senate context, but I'm not sure the issues are 
the same.  It's entirely consistent to believe that the provision in 
question permits the legislature to redistrict once, but late (Congress) 
but does not permit the legislature to redistrict twice (Senate).

Justin

-- 
Justin Levitt
Visting Associate Professor of Law
Yale Law School
203-432-4862
justin.levitt at yale.edu
ssrn.com/author=698321

On 1/22/2013 1:44 PM, Michael P McDonald wrote:
> The proposed Virginia Senate redistricting plan can be viewed, here, along with other characteristics of the districts:
>
> http://redistricting.dls.virginia.gov/2010/RedistrictingPlans.aspx#38
>
> If this plan is adopted there will be several interesting election law issues, among them:
>
> - The proposed plan creates a sixth majority BVAP district, one more than the existing plan. (A University of Virginia student team was the first to demonstrate this concept in our student redistricting competition in 2011.) Republican Senator Watkins is touting this as a virtue of the plan. The existing plan was precleared by DOJ, so Section 5 did not require this district. Have Republicans used race as a predominant factor when creating this district? If so, did the state have a compelling state interest in creating this district under Section 2?
>
> - Democrats are likely to challenge the re-redistricting under a Virginia constitutional revision adopted in 2005 that has language which may indicate such a re-redistricting is unconstitutional. The congressional districts were also litigated under this provision. A state district court denied the challenge, and Democrats declined to appeal to the Virginia Supreme Court. Democrats were not strongly in favor of appealing to the Supreme Court since it would have put their congressional incumbents at risk, but they will be highly motivated to challenge this Senate plan. A favorable ruling from the Virginia Supreme Court would open the congressional plan to a similar legal attack.
>
> - Will Democrats attack the House of Delegates plan? Virginia's constitution requires compactness, and neither the House nor Senate plans were particularly compact. Plans that I helped draw for the governor's commission as well as those drawn by students in our competition demonstrated how it is possible to draw substantially more compact districts than those adopted for the House. Another exposure of the House plan is that I showed it is possible to also draw an additional majority BVAP House district, one that I believe may affect the House committee chairman in charge of redistricting.
>
> In a forthcoming University of Richmond Law Review article, Micah Altman and I discuss this very scenario of a Senate re-redistricting. We may now need to revise before we go to publication.
>
> ============
> Dr. Michael P. McDonald
> Associate Professor
> George Mason University
> 4400 University Drive - 3F4
> Fairfax, VA 22030-4444
>
> 703-993-4191 (office)
> e-mail:  mmcdon at gmu.edu
> web:     http://elections.gmu.edu
> twitter: @ElectProject
>

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