Del. David Toscano: Virginia House Republicans Betting On Kavanaugh? Redistricting’s Next Phase

From Virginia House Democratic Leader Del. David Toscano:

Virginia House Republicans Betting On Kavanaugh? Redistricting’s Next Phase

October 8, 2018

Last week, I wrote a piece that linked the Kavanaugh hearings with the General Assembly’s machinations on redistricting (view it here). Now, with Justice Kavanaugh confirmed and sworn in, our House of Delegates redistricting may take yet another twist.

In previous writings, I have detailed the long and winding road (view it here) that led to the federal court decision to strike down the Republicans’ 2011 redistricting plan due to unconstitutional racial gerrymandering. Since that June 26, 2018, Court decision in Bethune-Hill v. Virginia State Board of Elections, and despite numerous requests by Democrats to reconvene the General Assembly to consider legislative options, the Republican strategy has been to delay any legislative action in hopes that new maps could not be drawn in time for the 2019 House of Delegates election. When Republicans finally offered a plan late last month, it simply reinforced the partisan composition of the House without fundamentally addressing the unconstitutional racial gerrymandering. Their plan was scheduled to be considered on the House floor on Sunday, October 21, nearly four months after the court’s decision.

Then, two things happened. First, Gov. Northam indicated that he would likely veto the Republican plan. And second, Judge Kavanaugh won confirmation, an event that allows the Republicans to throw a “hail Mary pass” in the direction of the U.S. Supreme Court. It is becoming abundantly clear that unless the Supreme Court intervenes, a new map will be drawn by the federal district court for the 2019 election, and the two-decade Republican majority, artfully crafted with the help of unconstitutional gerrymandering, will be further at risk.

House Republicans have now cancelled the House of Delegates session scheduled for October 21, and have decided instead to pin their hopes on the arrival of Justice Kavanaugh, in the belief that the partisanship evidenced at his confirmation hearing will bring about a decision to their liking. It will not be that easy.
READING THE TEA LEAVES
While the Republicans had already appealed the federal court’s decision in Bethune-Hill to the Supreme Court, the district court judges rejected requests to “stay” or stop their order requiring new districts to be drawn. The district court is also in the process of securing what is called a “special master” to draw new lines, much like what was done when the Republicans’ gerrymandered Congressional districts were found to be unconstitutional in 2015. The U.S. Supreme Court faces two decisions as they consider the Republican appeal. First, can they take the Republican appeal at all? And second, if they do, should they “stay” the order of the lower court while they consider the appeal? As for what the Court will decide — the short answer is, “who knows?” It is instructive that the U.S. Supreme Court has already heard the Bethune-Hill case, and in a 6-1-1 decision issued in 2016, returned the case to the district court, finding that the lower court had not properly considered the standards for racial gerrymandering. After a second trial, the district court issued an opinion that was critical of the credibility of Republican witnesses and held that the Republicans’ use of an artificial percentage floor of African-American voting population in eleven districts was improper. Given the Court’s decision in Alabama Legislative Black Caucus v. Alabama in March 2015, one could easily conclude that the Supreme Court is extremely leery of these schemes, and will continue to strike them down. And beyond that, even if the Court were to rehear Bethune-Hill, it would take five justices to “stay” the district court’s order, a large hurdle when considering that six of them now sitting voted in 2016 to return the case to the lower court. Perhaps Republicans have taken solace in the fact that the Alabama case was closely decided (5-4). Or that Justice Kennedy, now replaced by Kavanaugh, penned the majority opinion in Bethune-Hill. Whatever their hopes on this issue, the Supreme Court is now the only remedy they have.

Reading the tea leaves of judicial decision-making is a hazardous enterprise, but the odds are rapidly improving that an independent body — the federal district court — will draw new district lines for next year. Based on this ten-year history of unconstitutional line-drawing, perhaps the legislature will now conclude that creating an independent redistricting commission is a much better way to draw them in the future.