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.

Sen. Henry Marsh held in contempt by federal judge

On May 13, 2011 Sen. Henry L. Marsh, III (D - Richmond) suffered an awful fate for any attorney.  In a thirty page opinion resolving a summary judgment motion, Federal Judge Jackson L. Kiser spent approximately six pages detailing the facts, circumstances, and law behind his finding of contempt against Sen. Marsh.  Sen. Marsh has been fined $500.00 by the U.S. District Court for the Western District of Virginia for filing a late response to the motion, and for failing to notice his own motion.

Original coverage of this issue can be found here.

The opinion can be found here.  The order can be found here.

What did Sen. Marsh do procedurally?

Civil cases generally have scheduling orders that govern the timing of the procedures in the case.  The scheduling order in this instance required summary judgment motions to be filed within a particular time frame.  Sen. Marsh represented the Plaintiff.  Counsel for the Defendant filed a summary judgment motion in accordance with the scheduling order on March 4, 2011.  Pursuant to the electronic filing rules, Sen. Marsh received notice of this motion via an email to his designated email address.  The Plaintiff then had 14 days to file a response.  24 days later, on March 28, 2011 Sen. Marsh filed a motion for extension of time, with an attached memorandum in opposition to the motion.  This memorandum mistakenly was largely constituted of a brief from a different case (Sen. Marsh would later blame this clerical error on his  secretary, Op. p. 15).   On April 1st, 2011 Sen. Marsh filed a “meaningful response” fifteen days beyond the responsive deadline.  On May 5, 2011 a hearing was held.

The effect of the General Assembly session

Among the excuses offered by Sen. Marsh, he claimed that his “main reason” he needed an extension was due to his duties in the General Assembly.  The Court disregarded this reason and suggested Sen. Marsh should have planned better.  Just so the reader understands, the General Assembly adjourned sine die on February 27, 2011.  Sen. Marsh had a week to regroup before the motion was even filed.  By the time he filed for an extension the session had been adjourned for an entire month.

Va. Code § 30-5

There is a little known statute under Virginia law passed particularly to aid members of the General Assembly who are also practicing attorneys.  Va. Code § 30-5 allows a member of the General Assembly who is an attorney in a matter in state court to delay all court proceedings in his or her cases until thirty days after the conclusion of the session.  This law has no application in Federal Court, although the court addresses the statute.  Having invoked this statute myself, I have plenty more to say about it which will be saved for another time.

Results of late filings

There is a strong preference under both Federal and local rules to decide cases on the merits, rather than based on procedural defaults.  For this reason the late filed pleadings were ultimately accepted. Still the summary judgment motion was granted and the case was dismissed.  The Court appeared to accept that the late filings were the fault of the attorney, and instead of penalizing the client, Judge Kiser held Sen. Marsh in contempt for violations of the scheduling order.  The amount of $500.00 is symbolic, but rest assured attorneys take such a finding very seriously.

A final note

One might think I am being too harsh on Sen. Marsh.  In response: He is an elected official.  He chose, and even asked for his public position.  He claimed his public position as an excuse so he could receive relief from procedural rules.  This makes this matter fair game for public scrutiny.  If I see a similar thing happen to another member of the General Assembly, regardless of party, I will report in the same manner. 

UPDATE: As of May 18, Sen. Marsh appears to have paid the sanctions.