Is procedural rule key to redistricting debate?

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    By Paul Goldman

    Sooner preferably, but later inevitably, the new slice and dice known as redistricting faces one or more serious courtroom challenges. While the substance of the debate rages in the newspapers, blogs, and on talk radio, the key to how it gets resolved at the legislative level may dictated by how lawyers for the House Republicans and Senate Democrats view an arcane, judge-made procedural rule.

    Why? Because of the following.

    There are two basic ways a 2011 redistricting case gets into the courtroom. Those bringing the suit will either be: 1) challenging a new 2011 redistricting law as failing one or more legal tests; or 2) challenging the old 2001 redistricting law as no longer constitutional given the new census, because the GA redistricting bill got vetoed by Governor Bob McDonnell.

    In both (1) and (2), the key to victory may be how much judicial deference is given to the actions of politicians in the General Assembly. This is best understood as a burden of proof matter. In a courtroom, the party bringing the case has the ultimate burden of proof. The question is to what extent: in a criminal trial you need close to 100%; in a tort case, you need 50.1%; in a redistricting case???

    The answer depends on the degree of deference a judge gives to the legislature’s actions. Deference is the term the judicial branch uses to recognize the co-equal nature of the legislative and its policy making function. The more deference, the more proof the challenger will need to win. Think of it like the old baseball adage, in which “tie goes to the runner.” Expand it to “close call goes to the runner.”  

    As best I can understand the current debate in Richmond, there is a difference of opinion on how much judicial deference applies in (1) and (2). Some say it is the same, others say the politicians get more in (1) since this involves challenging an actual law, not just a bill.

    If you believe the same judicial deference applies in either case, then this reduces any incentive to make a deal. On the other hand, if you believe having a new 2011 law on the books gives you a better legal posture, then you have an incentive to make a deal.

    Legal logic suggests a law has to get more deference than a mere bill, no matter whether the Governor’s veto makes any sense or not.

    But that is not what I am being told. If anyone can answer that question with definitiveness, they can probably predict whether Senate Democrats ultimately cut a deal with Governor McDonnell or not. For now, it remains a question mark.

    • cvllelaw

      Period.  Anyone who tells you differently is speaking as a hopeful politician rather than as a careful lawyer.

      If a judge wants to give it more weight, he or she will do so without saying so.  

      I can’t imagine that a judge would look at the hash that is the 2011 bill and see it as entitled to any weight at all.

      Remember that old joke about the law of gravity — “It’s not just a good idea; it’s the law.”  Well, the 2011 redistricting bill is neither.

    • Peter Rousselot

      If VA Democratic legislative leaders are assuming that the bill which Governor McDonnell vetoed will receive the same degree of deference in court as an actual law would receive, then their legal strategy is just as flawed as their political strategy.