By Travis Fain
Supreme Court justices vigorously questioned all sides Monday morning as they delved into the legislative intent behind Hampton Roads' congressional lines and wondered how much right elected officials have to pick their voters.
The court heard 70 minutes of arguments in this long-running case over Virginia's 3rd Congressional District. A lower court in Richmond twice found the districting unconstitutional, determining that the Virginia General Assembly's GOP majority illegally packed black voters into U.S. Rep. Robert C. "Bobby" Scott's district.
The court then redrew the map, shifting enough voters out of the 3rd District to make the 4th District a potential pickup for the Democratic Party.
Experts following this case have said Virginia's Republican members of Congress, who fought the new map all the way to the U.S. Supreme Court, have a high hill to climb in this appeal.
The legislature increased the black voting-age population in Scott's district by more than 3 percentage points despite the fact that Scott had easily won re-election in a district where 53 percent of potential voters were black. The House of Delegates member who oversaw this process acknowledged that race, not partisan goals, was a primary concern.
While partisan gerrymanders have been accepted by the courts, racial ones have not. The Voting Rights Act requires map makers to consider race to a point, but by increasing the black voting population in Scott's district, legislators diluted their voting strength in surrounding districts, Democratic attorneys have argued throughout this case.
It's unclear when the justices will rule. Their current term runs till the end of June, and Virginia's congressional primaries are June 14. The justices declined to issue a stay on the new map while they heard this appeal, signaling that, while there were at least four votes on the nine-member court to take the case, there weren't five to issue the stay.
Since then conservative Justice Antonin Scalia has died, leaving eight justices on the bench and likely hurting Republican chances in the case. He was part of the minority opposition in last year's 5-4 decision to throw out maps in Alabama over racial gerrymandering claims.
"If they rule in the case like they ruled in Alabama, it's 5-3," said Scott, D-Newport News.
Scott, an attorney by trade, attended Monday's arguments, as did U.S. Reps. Bob Goodlatte, R-Roanoke, Robert Hurt, R-Charlottesville, and Scott Rigell, R-Virginia Beach.
It's possible the court won't actually rule on the merits of the case, which would leave some question about just how heavily race can be factored into the map-making process. The court asked all sides in this case to file legal briefs -- twice -- on whether Virginia's Republican members of Congress even have standing to appeal.
The state of Virginia, under Attorney General Mark Herring, a Democrat, defended the old districts in the lower court, but has since abandoned that defense. It sided in part with Republican lawyers, though, on the standing issue, arguing before the high court Monday that U.S. Rep. Randy Forbes has standing in the case.
The U.S. Department of Justice, which backs the new maps, argued that Forbes and his colleagues do not have standing, which is also the position of the Democratic Party attorneys challenging the old 3rd District.
Forbes, R-Chesapeake, plans to run for election in the 2nd District instead of seeking re-election in the redrawn 4th, which went from a safe Republican seat to a likely Democratic one.
Justices wanted to know Monday: Should he or any other politician get to complain to the courts when they don't like the way their district has been drawn? Justice Stephen Breyer, in particular, came back to this issue repeatedly, saying it could open the door to challenges from nearly every elected official in the country.
Michael Carvin, who represents Forbes and other Republican members in this case, said the new map doesn't merely impact Forbes' political career, it's a major detriment.
"It's not that you believe it hurts you," Carvin said. "It's that it's undisputed that it hurts you."
Mark Elias, who brought this case initially, responded that "members of Congress simply don't have a legal interest in choosing their voters."
Scott said he was surprised how much time the justices spent questioning the standing issue Monday, suggesting the case might be decided without ever getting to the meatier question of just what constitutes an illegal racial gerrymander.
Justices did spend some time on this issue, though, and Chief Justice John Roberts repeatedly questioned attorneys about how they could divine the General Assembly's intent.
What if, he posited, 10 percent of members say racial concerns were paramount, 10 percent say partisan ones were and 80 percent say nothing at all?
Look to the author of Virginia's 2012 redistricting, now-retired Del. Bill Janis has said, Elias responded.
Justice Ruth Bader Ginsburg noted -- nearly at the beginning of Monday's proceedings -- that Janis testified in this case that he didn't look at partisan performance in drawing the map. Its primary purpose was to avoid racial retrogression in the 3rd District so the state could pass muster under the Voting Rights Act, which requires districts to allow minority voters to elect the candidate of their choice.
(c)2016 the Daily Press (Newport News, Va.)