Is Virginia headed toward a Constitutional crisis over redistricting?

In my opinion, no.  

On Friday April 15, in the middle of the afternoon Virginia Governor McDonnell vetoed the redistricting bill.   There is no current redistricting plan and Majority Leader Dick Saslaw in the Senate has stated he intends  to resubmit the same plan the Governor found offensive.  If Governor McDonnell vetoes it again, Senator Saslaw stated he will not submit another redistricting bill to the Governor.

What follows is what really happens.

Things stay the same?

As bizarre as it might sound, things could stay the same.  The first thing we should all consider is that there are two apportionment bills in existence, one for the Senate, and one for the House.  These bills are presumed Constitutional and enforceable until someone challenges them in Court.  If no one files a lawsuit then the old reapportionment plans could stay in place until 2021. 

Of course the chances of no one filing a lawsuit are quite low as at least some folks already tried to obtain redistricting through the Courts before the special session even convened.  So, what is this lawsuit about?

The basics of the lawsuit

The grounds for the lawsuit could be a state challenge to compactness and contiguousness of the 2001 apportionment bills, or a challenge under the Federal Voting Rights Act, but most likely the lawsuit will simply be a challenge under the Federal Constitutional requirement of one-person one vote.  Presumably compactness could have been sufficiently challenged in 2001.  The Voting Rights Act can give rise to a new challenge under an old plan that without changes now disenfranchises minorities.  But, to have a successful challenge on the basis of mere vote dilution at the state level, one must prove that a district deviates from the ideal district in population by 10% or more.   We have that in Virginia in both the House and the Senate under the 2001 plans.

Because the lawsuit is based on a Federal Constitutional violation it will likely be filed in Federal Court.  And if the case were filed in state court, the Commonwealth could simply remove the case to Federal Court.  A three judge panel will likely be assigned upon motion of one of the parties under 28 U.S.C. § 2284.  The three judge panel must hear all requests for a preliminary injunction or final relief. 

There will likely be multiple cases.  All cases filed in the Federal Court for the Eastern District of Virginia will likely be consolidated with all other cases from the same District, and the same thing will likely occur for the Western District of Virginia.  We could potentially have competing three judge panels in the Western and Eastern Districts, although they are likely to do something reasonable to transfer jurisdiction from one Court to the other to avoid competing injunctions.

The lawsuits will ask for a few major items:

1.  Declaratory judgment that the 2001 apportionment statutes are unconstitutional.

2. A prohibitory injunction against the use of the 2001 apportionment statutes.

3. A mandatory injunction requiring use of an alternative apportionment plan, or a method of determining an alternative apportionment plan.

The parties seek injunctive relief

The Plaintiffs will likely seek a preliminary injunction followed by a permanent injunction.  Prohibitory and mandatory injunctions will be sought in both the preliminary and permanent injunction stages.

Short form definitions for injunctions:

Prohibitory injunction - a court order preventing somebody from doing something.  In this instance, a court order prohibiting the Commonwealth from holding elections under an unconstitutional apportionment plan.

Mandatory injunction - a court order requiring someone to do something.  In this instance, a court order requiring the Commonwealth to conduct elections according to a particular plan, or engaging in a course of action to determine a particular plan.

Preliminary injunction - an injunction entered prior to the final hearing in the case.  This is normally very hard to obtain.  Occasionally, as in this instance, the unconstitutionality of the 2001 apportionment statutes is unquestionable and a preliminary injunction is far easier to obtain.

Permanent injunction - an injunction granted pursuant to a final hearing.  This injunction can still be appealed, but it is likely no longer subject to revision by the three judge court. 

Preliminary injunction hearing

At this hearing the rest of the case will likely be decided.  It is nearly impossible to obtain a final hearing in sufficient time before November 2011 to obtain a permanent injunction granting judicial redistricting.  The preliminary injunction hearing is where redistricting in 2011 and likely 2012 will be decided.

The goal at the preliminary injunction hearing is to have the 2001 statutes declared unconstitutional in the short term, and have a different redistricting plan put in place for November 2011 elections.

For more on injunctions, please see my post on injunctions in the Virginia courts here.

Types of relief possible

At both the preliminary and final injunction stages the three Judge Court has broad discretion to fashion an appropriate remedy.  The Court could choose one of the existing redistricting plans, proposed as legislation, passed and vetoed, suggested by the nonpartisan redistricting commission, or even submitted from the public at large.  The Court could assign a special master to determine which plan to follow.  The Court could appoint its own panel of experts to suggest plans.  The Court’s primary goal is to meet legislative intent (and yes the Governor’s veto that is not overridden *should* negate legislative intent for the vetoed plan).  To this end the Court will likely want to send a directive back to the legislature to try again.

The major question at the preliminary stage is will the Court cancel 2011 elections, the answer is maybe.  The legislature could be kept in place only to pass a new apportionment scheme and electoral schedule.  Unlike in 1981, 1991 , and 2001 when redistricting challenges were brought, in 2011 there will be no new plan for the Commonwealth to begin execution.  The major case in 1981, Cosner v. Dalton, 522 F. Supp. 350 (E.D. Va. 1981) required enforcement of an unconstitutional plan for the Senate because the Constitutional House Plan would be disrupted if Senate elections were canceled and the Commonwealth was already preparing for an election based on the unconstitutional Senate plan.  In this instance there is no simultaneously Constitutional plan for the House, and the Commonwealth can not reasonably prepare for an election under the old 

districts.  This makes outright cancellation in 2011 a possibility.

At the preliminary stage the Plaintiffs should focus on showing the existence of a reasonable and benign alternative plan for 2011, and hold out the possibility that the Court could still require the legislature to pass a new plan in early 2012 and hold new elections in the Presidential year.  A three judge panel will make this decision.  As no one judge will control the process they will likely tend to moderate one another’s decision making.  The safest interim redistricting plan with support from a smart and forceful advocate will have the greatest chance of success.  Plaintiffs should file their case with their expert witnesses in hand, a list of viable redistricting plans, and good reasons why all the alternatives are not objectively reasonable.

Who should participate? 

Everyone who cares (and has money) should participate.  There is one guaranteed party with a seat at the table: the Commonwealth of Virginia as represented by the Attorney General.  If you want to speak up in Court you need to file a case, it will likely be consolidated with the others but at least you get to have a say in the matter.

If you want to see how this is done in 2011 please see my prior post about Virginia’s first 2011 redistricting lawsuit.  Do some digging, you might be interested to find a common name in that case, and in some 2011 redistricting legislative action.  

Other blogs

Lloydtheidiot over at tooconservative put up a post on Cosner v. Dalton on Tuesday.  I address why Cosner is inapplicable above.  Contrary to his name, I do not think Lloyd is an idiot and he raises some good points.

GoldmanUSA at BlueVirginia put up a post asking a clear question: will the bill that was vetoed be given as much weight as a duly passed law?  Well, to the simple question, no the bill will be given practically no weight.  If instead the bill that was vetoed is merely competing with other suggested redistricting plans, see my comment above: “the Governor’s veto that is not overridden *should* negate legislative intent for the vetoed plan.”    

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.