By Leland Ware
Louis L. Redding Chair and
Professor for the Study of
Law and Public Policy
Law and Public Policy
University of Delaware
On May 23, 2016, the Supreme Court held that an appeal of a judgement against the State of Virginia in a racial gerrymandering case could not proceed. The State of Virginia did not appeal the trial court’s ruling striking down the redistricting and the intervenors lacked standing to pursue the claim.
This case began in October, 2013, after a new congressional redistricting plan was enacted by the State of Virginia. The plan was designed to incorporate the results of the 2010 census. Three voters from Virginia Congressional District 3 brought a lawsuit against the Commonwealth. They challenged the plan arguing the district’s lines reflected an unconstitutional racial gerrymander. Under the new plan the Third District’s voting-age population grew from 53.1 percent African American to 56.3 percent African American. Maps of the district showed it was an oddly shaped chain of predominantly African American communities, stretching from Richmond to Norfolk, loosely connected by the James River. The redistricting has been described as one of the most aggressive gerrymanders in the country.
Members of Congress representing Virginia Districts intervened as parties to assist in the defense of the redistricting. After a bench trial, a divided three-judge District Court concluded that the Virginia legislature used race as the predominant basis for modifying the boundaries of District 3. The Court applied the strict scrutiny standard and found that the Commonwealth’s use of race was not narrowly tailored to serve a compelling governmental interest.
The State did not appeal. The intervening Members of Congress appealed the District Court’s judgment to the Supreme Court. Having recently decided a racial gerrymandering case, Alabama Legislative Black Caucus v. Alabama, the Supreme Court vacated the District Court’s judgment and remanded the case for reconsideration in light of the Alabama decision. On remand the District Court again decided that District 3 was an unconstitutional racial gerrymander. The state of Virginia did not to appeal. The intervening members of Congress appealed that decision to the Supreme Court. The Supreme Court held that the intervenors lacked standing to pursue the case.
Article III of the Constitution grants the federal courts the power to decide legal questions only in the presence of an actual “case” or “controversy.” This requires a party invoking a federal court’s jurisdiction to demonstrate standing. A party has standing only if he shows that he has suffered an “injury in fact,” that the injury is “fairly traceable” to the conduct of the defendant, and that the injury will likely be “redressed” by a favorable decision.
Originally 10 current and former Members of Congress intervened. However, only 3 of the 10 claimed that they had standing. In light of the District Court’s decision striking down the redistricting plan, Representative Forbes, the Republican incumbent in District 4, decided to run in District 2. Originally, Forbes argued that he would abandon his campaign in District 2 and run in District 4 if this Court ruled in his favor. While the case was pending, Forbes informed the Court that he would continue to seek election in District 2 regardless of this appeal’s outcome.
In light of this change, Forbes could not satisfy the redressability requirement. The Court did not see how any injury that Forbes might have suffered would “likely to be redressed by a favorable judicial decision.” Regardless of whether Forbes had standing at the time he first intervened, he did not have standing now. Representatives Wittman and Brat, the incumbents in Congressional Districts 1 and 7, respectively, did not identify any evidence to support their allegation that the redistricting plan harmed their prospects for reelection. The mere allegation of an injury, without more, is not sufficient to satisfy Article III. Based on the findings the Court found that the intervenors lacked standing to pursue this case.
Racial gerrymanders were the product of the Republican State Leadership Committee’s Redistricting Majority Project. GOP donors contributed millions of dollars to Republican candidates in state legislative elections with the purpose of redrawing congressional lines. Drawing new district lines presented an opportunity to strengthen conservative majoritiess at the state level and maintain a Republican majority in Congress. These gerrymandering schemes packed Democratic voters into single districts, while Republican voters were spread out in ways that resulted in more congressional seats for the GOP. Wittman was one of three cases in which racial gerrymanders have been struck down. The other cases involved redistricting in Alabama and North Carolina.
These egregious efforts to dilute the strength black voters harken back to the Jim Crow era when black voters in the South were completely disenfranchised. The gerrymandering cases and newly the enacted voter identification laws show how wrong the Supreme Court was when it concluded in Shelby v. Holder that racial barriers to voting are no longer a problem. The party of the “New Jim Crow” is doing everything it can to suppress the black vote.
 Strict scrutiny is the level of judicial review that courts use to determine the constitutionality of laws that contain racial classifications. To satisfy strict scrutiny, the legislature must have enacted the law to further a "compelling governmental interest," and must be “narrowly tailored” to achieve that interest.