Wednesday, March 30, 2011

Virginia Senate redistricting plan designed to invite litigation, Part One: The Virginia Supreme Court defines compact and contiguous

UPDATE: For other redistricting posts, primary sources, and other information regarding the Virginia Redistricting process in 2011 please see The Road to Redistricting Litigation in Virginia.

On March 29, 2011 political junkies were treated to a once every ten years phenomenon:  The release of proposed redistricting plans drawn by the General Assembly that have an actual opportunity of passing into law.  These maps can be found here:

(warning: to view the maps you need to install an additional program, and the maps are not easily copied.)

The Virginia Senate has two proposed plans: the first is from Senator Howell, reflecting the desires of the Democratic majority, the second is from Senator Watkins a Republican.  Based on rumblings, it is expected that the Howell Plan is likely to pass the Senate without modification as the General Assembly has a history of deferring to the wishes of the particular legislative body in determining district boundaries.

The Howell Plan has serious Virginia Constitutional problems and is an invitation to litigation.

Prior to the release of these plans I posted a brief summary of what litigation opportunities to look for in analyzing the redistricting plans.

The Howell Plan has serious problems showing compact (and in some instances, contiguous) districts.

Under Article II Section 6 of the Virginia Constitution "Every electoral district shall be composed of contiguous and compact territory . . ."  Thankfully, the Virginia Supreme Court has had an opportunity to analyze the definitions of "contiguous" and "compact" under the Virginia Constitution in the cases of Jamerson v. Womack, 244 Va. 506, 423 S.E.2d 180 (1992) and Wilkins v. West, 264 Va. 447, 571 S.E.2d 100 (2002).

Virginia constitution:

Wilkins is publicly available at:
(I will use page references from the publicly available version herein)

There does not appear to be a publicly available version of Jamerson, online. 

What does contiguous mean?

Contiguous has a generic dictionary definition, but under case law the word has been expanded to mean far mar than immediately touching.  In Wilkins, the Virginia Supreme Court addressed what contiguous means.  ". . . land masses separated by water may . . . satisfy the contiguity requirement in certain circumstances." Wilkins, p. 16.  "While ease of travel within a district is a factor to consider when resolving issues of compactness and contiguity, resting the constitutional test of contiguity solely on physical access within the district imposes an artificial requirement which reflects neither the actual need of the residents of the district nor the panoply of factors which must be considered by the General Assembly in the design of a district."  Wilkins, p. 17.  "Each district must be examined separately."  Wilkins, p. 18.  The Virginia Supreme Court did not explicitly state (aside from an intervening land mass) what would qualify to make a district not contiguous, but did indicate that access to the various portions of the district must be shown to be "unreasonable, unduly burdensome, or adversely impacts the ability of residents to secure meaningful representation . . ." to invalidate a particular district.  Wilkins, p. 17-18, 21.  The burden of showing access is hindered is on the party filing the lawsuit. 

"Compact" is even more difficult to define.

We all know what compact is when we see it, but "compact," in a legal sense, is exceedingly difficult to define.  There are experts on compactness that the trial court may take into consideration.  Wilkins, p. 20.  In a battle of experts if a major geologic, or demographic reason exists to create an otherwise sprawling district, the government receives the benefit of nearly all inferences.  Jamerson, 244 Va. at 514-517.  Given the heavy weight accorded to the legislative body it appears the legislative body merely needs to allege that compactness was considered in order to have its plans upheld. Jamerson, 244 Va. at 517.

The burden of proof is on the challenger

It is also clear from the case law the burden of proof is definitely laid at the feet of the person challenging the redistricting plan.  The Virginia Supreme Court stated in Jamerson that, “we must give proper deference to the wide discretion accorded the General Assembly in its value judgment of the relative degree of compactness required . . .”  244 Va. at 517.  "[O]nly where the statute in issue is 'plainly repugnant' to a constitutional provision will we declare it null and void."  Wilkins, p. 14 (citations omitted).  At the outset, this sets an extremely high burden.

The legislature may balance competing concerns

Additionally, the Virginia Supreme Court has made clear that in analyzing whether districts are compact and contiguous the legislature is allowed to balance these two requirements against all of the other requirements in redistricting.  Jamerson, 244 Va. at 517.  “[T]he General Assembly must balance a number of competing constitutional and statutory factors when designing electoral districts. In addition, traditional redistricting elements not contained in the statute, such as preservation of existing districts, incumbency, voting behavior, and communities of interest, are also legitimate legislative considerations.”  Wilkins, p. 17 (citations omitted). “[I]f the validity of the legislature's reconciliation of various criteria is fairly debatable and not clearly erroneous, arbitrary, or wholly unwarranted, neither the court below nor this Court can conclude that the resulting electoral district fails to comply with the compactness and contiguous requirements of Article II, § 6.”  Wilkins, p. 15.

Is there a ray of hope?

Yes.  Judges will be loath to render a portion of the Virginia Constitution meaningless.  The Plaintiffs in the Wilkins case were actually very successful at the initial trial of the matter, even though the decision was overturned on appeal.  Most importantly, Virginia Supreme Court Justice Compton dissented in the Jamerson case, stating:

“The 15th District crosses 12 counties, only six of which are wholly within the district, and cuts through three independent cities. The 18th District crosses six counties, only two of which are entirely within the district, and six independent cities, only one of which is wholly included in the district. The 15th District is approximately 145 miles long and is only eight miles wide at its narrowest point. The 18th District is 165 miles long, and only five miles wide at some places . . . Notwithstanding the deference to be accorded an act of the General Assembly and the findings of the trial court, I would decide as a matter of law, given the facts and circumstances of this case, that the legislature has exceeded the constitutional limitation on its power.”  244 Va. at 517

Reading the descriptions of those districts, and knowing at least one of seven justices thought they were inherently not compact, in Part Two we will look at the most offensive districts in the Howell Plan.

Part Two can be found here:

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