Sunday, May 8, 2011

Virginia redistricting coverage 31st Senate District - the difference between emotion and the law

Updated: May 8, 2011 - map added; updated section at the end.

The McLean Citizens Association [MCA] has some problems with the proposed 31st Senate District that runs from Arlington, along northern Fairfax County and into northeastern Loudoun County.  According to reporting from the Sun Gazette, the MCA does not want to be an appendage of Arlington.  The MCA has also “voted May 4 to consult with a pro bono attorney to assess the chances of mounting a successful legal challenge against those plans.”  

Everyone seems to hate the 31st

Look, lots of folks online have been complaining about the 31st.  The portions of Arlington, Fairfax, and Loudoun contain some of the most affluent areas of the Commonwealth.  Many of these folks are politically aware, active, and technologically savvy, which means their voices tend to be heard.  The 31st is a generally bad district in terms of compactness, and it conceptually has a contiguity problem in that a part of south Arlington is connected through the unpopulated Arlington National Cemetery.  Nonetheless, it is not a top candidate for litigation under a redistricting plan where numerous districts are far worse, although it is worthy of consideration.  It cannot be said enough: breaking up communities of interest is not a basis for a legitimate legal challenge to reapportionment just by itself (in Virginia).

For point of reference here is a map:

Is there a demographic rather than community of interest problem with the 31st?

Absolutely.  For all the complaints about connecting three disparate areas of contiguous counties, the bigger problem is the overwhelming dominance of Arlington in this district.  According to the Division of Legislative Services  the population for the three localities in the 31st is divided as follows:

Arlington - 116,599 - 58%
Fairfax - 59,263 - 29.5%
Loudoun - 25,043 - 12.5%

This is a demographic problem for Fairfax and Loudoun precincts that appear to be little more than an “appendage” from a heavily Arlington focused district.  But, this is not the basis for a legal challenge.

The elusive pro bono attorney?

The MCA thinks it is sending a message by agreeing to meet with a pro bono attorney.  In the interest of informing the public about the legal profession I will disclose the following: it is highly unlikely the MCA will even find a pro bono attorney of any caliber willing to take the case.  Some attorneys might be willing to meet, but a Constitutional challenge against a sovereign is not a minor undertaking.  The resources an attorney or firm must devote to such a challenge are substantial, and unlikely to be taken for free.  It is slightly more likely the MCA might find an attorney willing to engage in a modified contingency basis, as attorneys’ fees are a possibility in a Constitutional challenge. 

UPDATE:  Somehow I forgot to mention quite possibly the most important legal issue for the MCA: standing.  Standing is the legal concept that one is the proper party to sue to establish a particular right (or nullify the right of another).  There are both Federal and Virginia Constitutional cases stating that the parties who have standing to sue to invalidate reapportionment plans are those that will be voting in the offending district(s) in the next election.  In the courtroom, corporations, and other entities, and the people making up those entities are not one and the same thing.  The MCA likely does not have standing as the MCA will not be voting in any elections, whereas the members of the MCA may each individually have standing to sue to invalidate the plan if they can prove their own district violates state or Federal Constitutions.

I do not want to end on a bad note so I offer the following to the MCA (in a non-binding manner): Should you find your pro bono attorney, and should they file their case, I will provide coverage of the case, and cheer you on from the outside.

Otherwise folks in the 32nd can join me in voting against Howell in the fall.

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.

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