Virginia Can Engage in Mid-cycle Redistricting

Monday's redrawing of Virginia Senate Districts was likely Constitutional.

On Monday, Virginia Senate Republicans redrew Virginia's state senate districts utilizing their bare majority due to the absence of Senator Henry Marsh who was a couple hours up the road attending inauguration activities.

I have seen repeated calls for the plan to be struck down as unconstitutional under the Virginia Constitution.  Up until a few days ago, I agreed that mid-cycle redistricting was likely unconstitutional.

I repeatedly heard of a redistricting case from early 2012 in Richmond that prohibited mid-cycle redistricting, but no one seemed to have read the case.

I looked into some arguments, and had changed my mind.

Then I obtained a copy of the opinion.

In part:

The Constitution of Virginia dictates that “[t]he authority of the General Assembly shall extend to all subjects of legislation not herein forbidden or restricted; and a specific grant of authority in this Constitution upon a subject shall not work a restriction of its authority upon the same or any other subject.”  VA. CONST. art. IV, § 14 . . . The Court is unable construe Article II, Section 6, [regarding apportionment] as cabining the General Assembly’s authority to enact decennial reapportionment legislation to 2011 and foreclosing the enactment of such legislation in 2012.  Moreover, the 2004 amendments to this provision, specifically the addition of the word, “decennial,” and the replacement of the date in a section containing two-hundred-fifty-one words, do not support a finding that these revisions divested the General Assembly of its authority to enact decennial reapportionment legislation in 2012 after it failed to do so in 2011."  Slip Op pp. 7-8.

Reading the entire opinion is necessary if you want to understand the breadth and detail of the ruling.  The Judge did leave a loophole for later adjudication, and this legislation may beget the test case for that loophole.

Please note that this opinion is not binding outside of the parties in that case.  Nonetheless, the reasoning is sound, and I do not feel I could say it better myself.

The lawsuit to strike down the bill will likely fail, but the press generated will be damaging.  Republicans concerned about the effects on our statewide ticket this November need to urge the House to reject the legislation and the Governor to veto it.  Pass the bill in the light of day, and we will talk. 

As previously laid out the current senate districts from the Democrats are a travesty.

DoJ preclears Virginia House and Senate redistricting plans

Despite unabashed gerrymandering, the Department of Justice has precleared the Virginia House and Senate redistricting plans.

Details here.

The preclearance process is specifically designed to prevent suppression of minority voting power, and not to check other state or federal Constitutional violations.  Having passed this hurdle the only realistic change to House or Senate districts would have to come form a lawsuit.  No one appears to have filed a lawsuit since the passage of these plans, and it is unlikely given the passage of time, that someone with the money and desire would have sat on the sidelines this entire time.

I will take a brief moment to compliment the Department of Justice for preclearing both plans instead of  preclearing the Senate plan while denying preclearance to the House plan.

We may go an entire redistricting cycle without a Virginia redistricting lawsuit with a reasonable chance of success.  Then again Congressional redistricting is yet to be concluded . . . 

Virginia ACLU suggests two majority-minority Congressional districts: Democratic Senators scramble to validate their own substandard plan

UPDATED

Word reached the mainstream media today that the Virginia ACLU is shopping around an alternative Virginia Congressional redistricting proposal that contains two majority-minority districts.  The reason why this matters is that there is case law that suggests that if there can be even one more majority-minority district, then the redistricting plan with fewer majority minority districts is prima facie (presumed) discriminatory.  It is not clear to me if the alternate plan actually has to be proposed as legislation, or if any person can suggest the alternative plan to raise the spectre of litigation.

What was the status before this plan?

Virginia has a heavily gerrymandered House plan supposedly supported by the existing Congressional delegation.  Virginia also has a heavily gerrymandered Senate plan that creates a minority influence district out of the current minority-majority district, and then turns another district into a majority-minority district.  Both are expected to fail, and then a compromise to be worked out.  Since Governor McDonnell flexed his Veto pen on state level redistricting, and the existence of the alleged support of the existing Congressional delegation, it is safe to say the Republican House plan has a greater chance of success.

But legislators would be begging for a lawsuit if they do not support the ACLU plan, right?

According to Sen. Don McEachin, no.  As reported by the Washington Post: “the Department of Justice looks to the percentage of residents in districts who are older than 18 and are non-Hispanic black when examining the number of black residents in each district.”  Based on that analysis both majority-minority districts become minority influence districts. 

Mind you, the Department of Justice is not a substitute for a Federal Judge if the plan is challenged in Court (the DoJ can be a substitute for a Federal Judge in the preclearance process, only).

So is the ACLU’s plan DOA?

Not exactly.  The Department of Justice, under Georgia v. Ashcroft, 539 U.S. 461 (2003) and Beer v. United States, 425 U.S. 130 (1976) should be looking at the totality of opportunity for minority candidates.  This totality of opportunity should take into consideration minority population, minority voting age population, as well as minority voter registration among other items as legitimate factors in determining if a plan should be precleared.  

Additionally, I just do not understand how Sen. McEachin, could think the ACLU plan is any worse than the Senate plan.  

So how does the ACLU plan look?

Do not worry, it really is another gerrymandered atrocity.   I would say let it be submitted  to committee and debated, but there really has not been much actual debate on any Virginia redistricting plan so far.  Virginians should be used to this by now.  I am just waiting for the report from somewhere in Virginia for any of these plans that a precinct split resulted in residents of an apartment building being redistricted into different districts.

UPDATE: As of June 9, 2011, the Senate has passed a modified version of its previous plan.  The districts are far more compact and arguably more compact than the House plan.  It is far from perfection, and the majority-minority district barely tops over 50% Black Voting Age Population, making it harder to gain preclearance.  Nonetheless, it has only taken two and a half months, but the Senate Democrats are figuring out how to gain more support by making their plans more reasonable.  The publicly available information on this plan can currently only be found on the Division of Legislative Services redistricting website.

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.

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.

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.

Virginia Redistricting lawsuit unlikely from Republican party or its elected officials - reading between the lines

"What's done is done," - Sen. Obenshain on Gov. Mcdonnell's signing of HB 5005 the 2011 Virginia House and Senate redistricting bill.

Reading between the lines I think the chances of an official Republican party challenge to senate Redistricting in 2011 are pretty slim. 

RPV chairman Pat Mullins put out a statement including the lines: "With word tonight that Governor McDonnell will sign the redistricting plan created by the General Assembly, the 2011 campaign can officially begin. I feel great about our prospects of growing our majority in the House of Delegates and reclaiming a majority in the state Senate."

Even more telling are the comments in an email to supporters from Sen. Obenshain, a conservative stalwart of the Senate and one of the five Senators (two more might have voted against if they were present) to vote against the plan.  Sen. Obenshain said, in part, "We had an opportunity to say "no" to this map, and I think we should have done so. The bill is signed. What's done is done."

It does not take much to read between the lines and see the elected and party officials are unlikely to pursue legal remedies on redistricting.  "What's done is done"

Full statement from Sen. Obenshain after the jump.

Senate redistricting compromise does little to avoid litigation

As discussed with the original Senate Howell plan, the major litigation problem for the plan was the lack of compact and contiguous districts.  As discussed here, here, and here, in my opinion there were five especially egregious districts.

These districts survived through to the conference plan vetoed by the Governor.

For the most part these districts also survived through the "compromise" being considered now. 

Below are three maps reflecting a comparison of the redistricting lines for the five least compact and contiguous districts.

For each map:

The blue lines reflect the conference plan vetoed by the Governor.

The green lines represent the current compromise plan.

When the lines are the same the blue lines cover the green lines.

For Districts 1, 2, and 3.  There are virtually no differences.  District 3 has been tweaked, but not enough to make it remotely compact.

For District 36 substantial changes have been made to the South Western portion of the District, but the major trouble areas have not been changed.

For District 31 it appears to be identical.

Ignoring for the moment the partisan benefits or detriments of either the conference plan vetoed by the Governor or the current compromise, the compromise plan is still an invitation to litigation.

High resolution version of the maps can be found here.

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.

Did Virginia Senate Democratic leadership buckle under threat of redistricting litigation?

In my opinion, yes.  It was also the smart political decision.

The new proposal

A new proposal has been reached between Senate Democratic and Republican leadership for the Senate redistricting plan.   As of this posting, the details have not been released, and the proposal still needs approval from both caucuses before it is likely to pass out of the General Assembly and be signed into law.  At least one left leaning blog is lamenting that Senate majority leader Dick Saslaw caved in the negotiations. 

The reason for backing down?

According to Blue Virginia:

“What I'm hearing from multiple sources is that the legal advisers to Dick Saslaw apparently changed their mind, suddenly deciding that the courts were more of a problem than they had thought. So, they advised Saslaw to avoid that route at (almost) all costs.”

IF this is accurate, the legal advice is sound.  As I indicated here, what happens if no plan is reached is up in the air, but the Howell plan for redistricting is a highly unlikely outcome because it raises serious Constitutional questions on its own.

Instead, if no agreement is reached the likely outcome is a very safe plan with an emphasis on compact districts, with little consideration for the protection of incumbents.  Compact districts will generally favor Republicans, as Democrats will generally have districts of overwhelming influence in urban areas, thereby diluting Democratic strength in non-urban areas.  For this reason a compromise on redistricting is the smart outcome for Senate Democrats.

Who made the mistake?

Dick Saslaw made the strategic mistake when he said there was no way he would change the plan, and that he would send the same plan back to McDonnell even if it is vetoed again.  In the grand scheme of things that is a much smaller political mistake than failing to compromise on redistricting.

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.

(active) Virginia redistricting lawsuit number three makes its way into Federal Court

As discussed on April 20, 2011 there are two active (i.e., not dismissed) redistricting lawsuits filed in Federal Court.  

On April 19, 2011 I discussed the mechanics of a redistricting lawsuit if the legislature fails to successfully pass redistricting plan for the Virginia House, Virginia Senate, or the House of Representatives.  As part of that discussion I indicated how unlikely it is that any such lawsuit will successfully be litigated in the Courts of the Commonwealth.  Essentially, if a case involves interpretation or enforcement of Federal law, which includes the Federal Constitution, the Commonwealth of Virginia has the power to remove the case from state court into Federal Court.

On Friday April 22, the Commonwealth of Virginia removed such a case from the Circuit Court for Hanover County to the U.S. District Court for the Eastern District of Virginia.  So now we have three . . .

Lawsuit number 3 - How did we get here?

It appears that on March 25, 2011 three Plaintiffs filed a lawsuit in Hanover County Circuit Court alleging the 2001 apportionment plans for the House, Senate, and U.S. Congress violate the Plaintiff’s Virginia Constitutional, and, in some instances, Federal Constitutional rights.  The case does not appear to have been served until last week.  Apparently, as the case was being served the Plaintiff’s returned to Court and were granted relief to file an Amended Complaint.  The Commonwealth of Virginia, as this case involves interpretation and enforcement of the Federal Constitution, removed the case to Federal Court.

The portions of the Complaints addressing legislative apportionment at the state level do not mention the Federal Constitution within the “Count.”  This may have been an attempt to suggest the Federal Courts do not have jurisdiction over the case, thereby preventing removal.  Nonetheless, the Federal Constitution is invoked throughout the remainder of the Complaint, and the likelihood of having the case sent back to Hanover Circuit Court is quite low.

The Plaintiffs are Raymond J. Klotz, Jr., Edward Fleischer, and Gerald Burch, Jr.  Raymond J. Klotz, Jr. appears to be a minor ($2700 plus $1000 donated to a PAC with no partisan denomination) Republican donor.  Edward Fleischer appears to be a minor ($215) Republican donor.  Gerald Burch, Jr. appears to be a minor republican donor and former primary candidate for a House race in 2009.  If I understand correctly Gerald Burch and Jana Burch (a Plaintiff in the other redistricting lawsuit in the Eastern District of Virginia) appear to be married.  I guess they could not agree on which lawyer to hire . . .  Counsel, R. Craig Evans appears to be a minor Democratic donor. 

Procedural issues

This lawsuit has some procedural problems, all of which seem to have been worked out without harm to the Plaintiffs. 

For example:

A. As the case was filed before commencement of the special session it should have been dismissed if filed in Federal Court just like Carter v. SBE I.

B. Filing this case in state court meant it will be delayed, and likely removed to Federal Court anyway.  Essentially it is a waste of time in most instances.

C. The Plaintiffs did not serve the lawsuit for nearly a month, and then served the original Complaint and the Amended Complaint almost simultaneously.  If the lawsuit was meant to be vigorously pursued, service should have been sought earlier.

D. The Plaintiffs moved to include AG Cuccinelli and the “Commonwealth of Virginia” as parties.  These appear to be the only changes in the Amended Complaint.  Neither entity is a necessary party, and certainly the inclusion of these entities did not require an additional Motion and Court appearance, and duplicative service of the Amended Complaint within day of service of the first Complaint.

BUT, as I indicated, none of this appears to have any long term negative consequences.  In fact, had the case been served and removed to Federal Court in early April, the case might have been dismissed just like Carter v. SBE I.

What does the inclusion of this case mean?

It means we have a few more Plaintiffs and attorneys involved in redistricting litigation in the Eastern District of Virginia.  Welcome to the party.

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.

Virginia redistricting lawsuits in full swing

Gov. McDonnell vetoed the redistricting bill, and plaintiffs marched into Federal Court on Monday and Tuesday.  In my opinion these lawsuits are still premature as the Gen. Assembly needs to have another chance to send a bill to the Governor before we accept that this exercise is futile.  Nonetheless, by filing now these litigants ensure themselves a position driving redistricting litigation if now plan is ultimately passed.

Lawsuit number 1 - they’re back!

Out in the Western District of Virginia the same folks who filed and had their case dismissed in February filed a nearly identical Complaint on Monday.  Here is the Complaint.

The Plaintiffs are Henry Lee Carter and Gregory M. Yates.  According to VPAP, Gregory Yates is a high dollar (almost $60K) Democratic donor (with some Republican donations thrown in).  According to VPAP, Henry Lee Carter is a high dollar (a little over $16K) Democratic donor.  Counsel in the case is Gerald Hebert an expert in election law who has a personal history of Democratic donations.

The Complaint sues the SBE directly, and sues the AG and the Lieutenant Governor.  It is my opinion that none of those people or entities need to be included.  Otherwise, it appears these folks know what they are doing.  In my opinion the proper parties are the members of the SBE and perhaps the Governor.

Lawsuit number 2 - new to the party

In the Eastern District of Virginia some, on Tuesday, new litigants have filed a Complaint to invalidate the 2001 redistricting plan as well.  The Complaint is here.  The Motion to convene a three judge panel is here.  

The Plaintiffs are Jana Burch, Gary Bullis, and Jerome Burke.  Jana Burch does not appear to have a VPAP donor history.  Gary Bullis appears to be a minor ($630) Republican donor.  If this is the same Jerome Burke, he is a minor ($800) conservative Republican donor.  Counsel, Charles E. Adams appears to be a minor Republican donor. 

The complaint sues the “Virginia Board of Elections” and the members of the SBE in the official capacity.  It is the “State Board of Elections,” but the difference in name is irrelevant.  The Complaint is verbose, but otherwise it appears these folks also know what they are doing.

What does this mean?

It means that if the General Assembly and Governor still cannot pass a plan, then a handful of Democrats and Republicans, and the AG’s office, will be arguing with a handful of judges to decide the lines to be drawn for November 2011.  There is plenty of time for more people to file lawsuits, so we will see who dominates the debate in the Courts in another few weeks.

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.

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.