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Supreme Court to Rule on Virginia's Racial Gerrymandering

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By Casey C. Sullivan, Esq. on November 18, 2015 2:58 PM

To travel the length of Virginia's third congressional district isn't an easy task. You'd need a boat, a plane, and a whole lot of time to follow the district from its northern corner outside Richmond, across the James River, around and over Newport News, and finally down to certain Norfolk neighborhoods.

It's a district that would drive many cartographers nuts, and that was exactly the point. The district was originally designed as the state's only majority-minority district. A 2010 redistricting by the state's Republican-controlled legislature shoved even more of the state's black voters into District 3, diluting their impact elsewhere. Now, the Supreme Court will see if the redistricting itself is illegal, having agreed to hear the appeal last Friday.

District 3: Now Even More Majority-Minority

Under Supreme Court precedent, race may not be the predominate consideration in a voting district. But race was exactly the motivator in Virginia's redistricting, the lower court found. Particularly damning were statements by the legislation's architect that District 3's lines were being redrawn to avoid "weakening" the influence of minorities in the district.

The new district, of course, did not strengthen minority influences in voting. The district, already a sure thing for Democrats, changed from 53.1 to 56.3 percent minority. The change amounted to a net loss of voting power for minority and Democratic Virginians. The district court is currently redrawing the election district itself and will continue to do so, unless the Supreme Court finds the redistricting to be permissible.

Another Question of Standing

The Court did add an extra twist to the case, however. When Republican Congress members appealed the court's ruling to the Supreme Court, their questions presented were fairly straightforward. First, did the court err in finding that racial concerns predominated in the redistricting? Second, did it wrongly relieve the plaintiffs from showing a workable alternative? Third, did the court get the facts wrong? And finally, whether the court misapplied strict scrutiny. All the sorts of questions you would expect.

But the High Court added a fifth. In their Friday order, they instructed parties to brief and argue whether the politicians lack standing to bring the appeal. (Standing will also play an important role in two other major cases this year, one dealing with privacy violations, the other with Obama's immigration plan.) None of the politicians challenging the lower court rulings reside in or represent the district affected. This fifth question raises the distinct possibility that the Justices could hear the appeal but avoid ruling on the merits, letting the district court's ruling stand.

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