Tuesday, May 3, 2011

Virginia redistricting lawsuits about to be dismissed, will they be refiled?

There are three existing federal lawsuits challenging the 2001 redistricting plans.  Now that a redistricting plan has passed the General Assembly, and the Governor has signed it, what happens to those lawsuits?  More importantly, will new lawsuits take their place?

What happens to the existing federal lawsuits?

They will be dismissed.

There are three pending federal lawsuits challenging the 2001 redistricting plans.  I described those lawsuits here, and here.  To understand why the lawsuits are challenging a ten year old law, you can refer back to my post Is Virginia headed toward a Constitutional crisis over redistricting?  To understand what happens to the existing federal lawsuits the reader needs to understand mootness, ripeness, and the broader concept of justiciability.  Justiciability is explained in my post regarding the DC healthcare case.  Mootness is the concept that one can only challenge an apparent wrong to force that wrong to be changed while the wrong is ongoing.  For example, one can only challenge an unconstitutional law while the government is attempting to enforce that law.  Ripeness is discussed in my post regarding the first 2011 redistricting lawsuit dismissed back in February.  In short ripeness is a doctrine that requires that a party actually be injured before bringing a lawsuit.

Lawsuit number one - to be dismissed

This lawsuit only challenges apportionment for the senate 2001 plan.  The 2001 plan has now been superseded by a plan passed by the General Assembly and signed into law.  The claims in this lawsuit arise from malapportionment under the Federal and state Constitutions, and not a lack of compactness.  Hence, the claims do not automatically transfer to legislation passed a decade after the original 2001 plan, as apportionment under the two plans is not remotely similar.  This makes the challenges distinct.  This case is now moot and should be dismissed without any further pleadings.

Lawsuit number two - to be dismissed

This lawsuit challenges Virginia House and Senate, and congressional redistricting under the 2001 plan on the basis of malapportionment under both state and federal law.  It was filed in federal Court.  The state Court claims should be dismissed for mootness under the same analysis as lawsuit one.  The challenge to congressional malapportionment should be dismissed as the claim is not ripe.  It has not been shown that the General Assembly will fail to pass a new Congressional redistricting plan and so this case should be dismissed as not yet causing harm, i.e. not ripe.  With no federal claim there is no basis to be in Federal Court, and the case will be dismissed even if there are state law claims, as the case was originally filed in Federal Court, and can not be sent to state court directly from Federal Court under these circumstances.

Lawsuit Number three - to be dismissed?

This lawsuit follows all the same reasoning as lawsuit two with a major exception.  This case was filed in state court and was removed to Federal Court by the Commonwealth of Virginia.  To the extent there are still state law claims against the 2011 plan, the Plaintiffs may argue their compactness and contiguousness claims should transfer to the 2011 plan and the matter should be sent back to Hanover County Circuit Court.  The Plaintiffs if the want to challenge the 2011 plan might be better off allowing this case to be dismissed without prejudice, and simply filing a new case in state court.

When will we learn about new state court actions?

I regret to say that we will learn about any redistricting cases in state court via word of mouth and the main stream media.  Virginia is making great strides in technology in its court system, but it is still difficult to search for cases at the state level in an efficient manner online.  If anyone hears of a 2011 Virginia Circuit Court case let me know, I will see if I can obtain the pleadings.

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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