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Doubts about new redistricting case

The Supreme Court on Monday afternoon told lawyers involved in a new case on the constitutionality of a congressional election district in Virginia to file new briefs on whether the case can go forward in the Court.  In a one-paragraph order issued along with two other procedural orders after the first Conference in advance of the new Term, the Court questioned whether current and former members of the House had a legal right to pursue their appeal.  The Court has not yet agreed to hear the case, but it is in a form that would require the Court to act on it if it were properly filed..

At the core of the case of Wittman v. Personhuballah is whether a sprawling District 3 was designed unconstitutionally because of the role that race played in drawing its boundaries.   The only House district in Virginia with a majority of minority population, it starts north of Richmond and skips various cities on its way southward into the area around Norfolk and Newport News.  It is now represented by a black Democrat, Rep. Bobby Scott.  Its form has been described as resembling a “grasping claw.”

Ten past and current members of Virginia’s House delegation who had intervened in the case filed by two District 3 voters filed the appeal in the Supreme Court in June — their second attempt to get the case before the Court.  A three-judge federal district court has twice nullified the district’s map, finding that race was the predominant and thus forbidden factor in its formation — that is, the map reflected a “racial gerrymander.”

After the first such ruling, and the first appeal, the Supreme Court wiped out the district court’s ruling last March, returning the case to that panel to reconsider in the wake of a then-new ruling by the Justices, in an Alabama case, about racial factors in legislative redistricting.  Once again, the district court nullified the plan, and ordered the state legislature to try again.

When a special session of the legislature failed to agree on a new plan, the district court began an effort on its own to craft a plan, but that effort has not yet been completed.

After the second ruling by the district court, the only appeal to the Supreme Court was filed by the ten past or current members of the House, none of whom represent District 3.  State officials did not file an appeal, although they had defended the plan in the district court.

When the voters who had filed the original lawsuit challenging District 3 answered the new appeal in the Supreme Court, they argued that the present and former lawmakers could not show that they had been injured by the new District 3 and therefore lacked “standing” to pursue their appeal under the Constitution’s Article III.

The situation appears to parallel what the Supreme Court confronted two years ago in a California case involving the same-sex marriage issue.  After a federal judge had struck down California’s “Proposition 8” ban on such marriages, and that ruling had been upheld by a federal appeals court, Proposition 8’s sponsors — who had intervened in the case — took it to the Supreme Court.  The state did not pursue an appeal on its own.  The Court in that case, Hollingsworth v. Perry, ruled that the sponsors of the ban did not have standing to appeal when state officials had failed to do so.

Monday’s order was unusual in that the Court had not yet put the Virginia redistricting appeal on its docket for review, but sought supplemental briefs anyway.  The Justices apparently considered whether to accept the case at their Conference earlier in the day, and then became aware of the “standing” challenge filed in the opposing brief.

The Court ordered both sides to file briefs on the standing issue, to be sent in simultaneously by October 13, with reply briefs by October 20.


Recommended Citation: Lyle Denniston, Doubts about new redistricting case, SCOTUSblog (Sep. 28, 2015, 5:55 PM),