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[1]
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.
[1] 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.
