AG Mark Herring Urges General Assembly to Eliminate Racial Gerrymandering in House of Delegates Districts ASAP

RICHMOND (July 19, 2018)—Attorney General Mark R. Herring issued the following statement on his decision not to appeal or seek a stay of the three-judge panel’s decision in Bethune-Hill v. Virginia State Board of Electionsfinding that 12 House of Delegates districts are unconstitutional racial gerrymanders that “sorted voters into districts based on the color of their skin.”

“A panel of three federal judges has issued a 93 page decision finding ‘overwhelming evidence’ that Virginia’s House of Delegates districts ‘sorted voters into districts based on the color of their skin.’ This finding of a race-based violation of Virginians’ right to vote should be of the utmost concern to each of us, and it demands a remedy as soon as possible. Therefore, having carefully considered the chances of winning an appeal, the considerable time and taxpayer dollars that have already been spent and would continue to be spent on an appeal, and the right of Virginians to vote in districts that are not tainted by racial gerrymandering, I have decided the Commonwealth will not pursue an appeal or stay in this case, and will work to ensure that fair, constitutional lines are drawn as soon as possible.

“The Court has given the General Assembly more than three months to draw a fair map before it steps in and does the job for us. I encourage legislative leaders from both parties and both chambers to come together as soon as possible and to work with Governor Northam to seize this opportunity to create fair, constitutional districts.”

For nearly four years the Office of Attorney General has represented the named defendants in the case, including the Virginia State Board of Elections, and defended the constitutionality of the districts alongside private attorneys hired by the Virginia House of Delegates and the Speaker of the House, who were not sued, but instead chose to join the case as “intervenor-defendants.”

To date, the House of Delegates has spent more than $4 million on attorneys in this case, while the OAG has spent approximately $877,000. Additionally, the plaintiffs who filed the suit have submitted a request for nearly $4 million from the state to cover their costs, which federal law allows them to do as the prevailing party.

Today, the OAG has filed this motion opposing efforts by the intervenor-defendants—the House of Delegates and the Speaker of the House—to further delay the creation of a new, constitutionally-compliant map that does not include racial gerrymandering.

The brief says, in part:

“For more than three years, the Attorney General of Virginia has defended against the Plaintiffs’ challenge to the constitutionality of the state legislative districts at issue here. But having considered and carefully reviewed this Court’s recent opinion, the Attorney General has determined that continued litigation would not be in the best interest of the Commonwealth or its citizens and that an appeal to the United States Supreme Court is thus unwarranted.

“In making that determination, the Attorney General has considered the high bar to overcoming this Court’s extensive factual findings, the significant time and expense that have already gone into this case and that would only be further increased by an appeal, and the compelling interest in promptly remedying what this Court has concluded is an unconstitutional racial gerrymander.”

The Court has given the General Assembly the opportunity until October 30,2018 to construct a plan that eliminates the racial gerrymandering it found.House Minority Leader David Toscano has written to House Speaker Kirk Cox requesting that the House move as quickly as possible to create new districts, suggesting the previously scheduled August 16 session as a time to take up the matter.