Virginia House of Delegates v. Bethune-Hill

STANDING TO APPEAL

The Virginia House of Delegates (“House”) asserts that it has standing to bring this appeal. The House contends that it not only has a “personal stake in the outcome” of the case, but it also suffers a distinct injury from the lower court invalidating the redistricting map it drew. The invalidation inflicts a particularized and concrete injury, according to the House, because the court usurps the House’s redistricting authority and forces the House’s members to run for reelection in the new, court-drawn districts while simultaneously representing their current district. The House compares this case to Sixty-Seventh Minnesota State Senate v. Beens, where the Supreme Court held that the Minnesota State Senate had standing to appeal after it intervened as a defendant in district reapportionment litigation, and argues for a similar outcome. Additionally, the House notes that Bethune-Hill, Virginia Attorney General Mark Herring, and the district court all failed to object to the House’s intervention in the original suit. The House continues that it has participated in and overseen all aspects of the litigation without objection from any party until this appeal. Although the House concedes that state attorneys general usually retain the ability to appeal such cases, the House rejects the notion that Attorney General Herring “alone has a monopoly over whether to appeal a decision.” And pursuant to the Karcher v. May Supreme Court decision and Virginia courts’ decisions, the House claims that state law authorizes it to “represent the State’s interest in redistricting litigation” when Attorney General Herring declined to do so.

Bethune-Hill as well as Virginia Attorney General Mark Herring and State appellees respond that the Virginia House of Delegates lacks standing to pursue this appeal because the institution itself does not suffer a legally cognizable injury. Bethune-Hill contends that the House conflates its intervention under Federal Rules of Civil Procedure Rule 24 in the litigation with its standing under Article III of the Constitution. While the former requires only an interest in the litigation, the latter requires a concrete and particularized injury—which Bethune-Hill asserts does not exist. Bethune-Hill further maintains that the House’s “divided constituencies” theory of injury does not pass constitutional muster because that outcome happens after every decennial census, and the injury would apply to the individual delegates rather than the institution as a whole. Bethune-Hill similarly rejects the House’s “redistricting authority usurp[ation]” theory of injury because courts routinely strike down unlawful statutes and must draw the remedial map if the legislative body fails to do so. The House’s reliance on Beens is similarly unavailing, according to Bethune-Hill, because that case considered standing in the context of reducing the number of state senators rather than merely redrawing their districts. Additionally, Herring notes that Virginia law grants him alone, in his capacity as Attorney General, with the authority to defend challenged state laws and appeal when they are invalidated. . Herring concludes by noting that the Supreme Court has consistently held that the federal government must “speak with one voice,” and asserts that the same principle applies to the state governments.

THE PREDOMINANCE ANALYSIS AND THE USE OF RACE IN REDISTRICTING

The Virginia House of Delegates argues that Bethune-Hill and the other appellees did not satisfy their burden of proving that race predominated the drawing of the challenged districts. That is, the House contends, Bethune-Hill cannot demonstrate that lawmakers’ “dominant and controlling rationale” was “race for its own sake and not other districting principles” when it redrew the twelve majority-minority districts. Although Delegate Jones considered race in the redistricting process to comply with Section 5 of the Voting Rights Act of 1965 (“VRA”), the House maintains that Delegate Jones adhered to traditional redistricting principles and that race served as one factor among many in the lawmakers’ holistic approach. Furthermore, the House asserts that evidentiary record—including “the face of the plan” itself—shows that the 55% BVAP did not dominate or control the redistricting process because none of the districts violated the state’s adopted criteria. The House also notes that Delegate Jones only minimally changed the challenged districts from the previous map and that the individual districts retained their cores and significant proportions of their prior constituencies. Finally, the House posits that the district court erred by disregarding relevant evidence of race neutrality, dismissing the House’s witnesses as not credible, and baselessly rejecting Delegate Jones’s explanations for altering geography or constituencies from the previous map.

In response, Bethune-Hill argues that even if the House has standing to appeal the district court’s decision, the district court did not err in determining that race predominated the drawing of the challenged districts. The district court, according to Bethune-Hill, reached this conclusion by simply applying the Supreme Court’s recent redistricting and gerrymandering decisions and conducting a highly fact-specific analysis based on the evidence and testimony at trial. In particular, Bethune-Hill asserts that although using a BVAP requirement when drawing a district does not by itself suggest that race predominated, Delegate Jones’s inflexible application of a 55% BVAP floor for all twelve challenged districts suggests that he deviated from traditional districting criteria. Bethune-Hill points to instances of “stark racial sorting” by Delegate Jones to meet the strict 55% BVAP floor, which included dividing a military base along racial lines into two separate districts. Furthermore, Bethune-Hill maintains that Delegate Jones redistricted black voters into the challenged districts at higher rates than other voters. And even though the challenged districts “did not uniformly converge on 55%,” Bethune-Hill argues, Delegate Jones’s use of a racial target without compromise strongly suggests that race predominated. Bethune-Hill also contends that district core and constituency retention do not inoculate racial predominance; in fact, the district that the Supreme Court struck down two terms ago retained more of its core than nearly every other challenged district. Finally, Bethune-Hill concludes that the House’s disagreement with the district court’s weighing of the evidence, credibility assessments, and dissatisfaction with the law do not constitute legal error in assessing predominance.

APPLYING STRICT SCRUTINY TO THE CHALLENGED LEGISLATIVE DISTRICTS

The Virginia House of Delegates argues that even if race predominated the drawing of the challenged districts, the challenged districts still satisfy strict scrutiny. The Supreme Court, according to the House, has consistently recognized that complying with the VRA and avoiding retrogression under Section 5 satisfies the compelling interest prong of the strict scrutiny analysis. Concerning the narrow tailoring prong of the strict scrutiny analysis, the House asserts that lawmakers need show only that they had “good reasons” for using racial considerations in their effort to comply with the VRA. The House contends that lawmakers utilized the 55% BVAP target to avoid retrogression in the twelve minority-majority districts while also accounting for population changes and adhering to traditional districting criteria. The House posits that Delegate Jones settled on the 55% BVAP target only after conducting a functional analysis by considering the available data and consulting with the incumbent delegates representing majority-minority districts—one of whom suggested that the BVAP needed to exceed 50%. The Supreme Court, the House maintains, approved of this kind of approach when it considered one of the districts two terms ago and ultimately concluded that lawmakers need not determine the precise percentage required by the VRA. Demanding that lawmakers calculate surgically precise BVAP targets, the House concludes, “ask[s] too much” of lawmakers who use race in good faith to comply with the “onerous demands” of the VRA.

Bethune-Hill responds that the district court did not err in determining that the design process of the challenged districts failed the strict scrutiny analysis. Bethune-Hill concedes that there is a compelling state interest in complying with Section 5 of the VRA, but asserts that the design process was not narrowly tailored. Delegate Jones, Bethune-Hill contends, devised the 55% BVAP floor by considering only one of the twelve challenged districts. Bethune-Hill argues that Delegate Jones’s subsequent strict adherence to that 55% BVAP floor in every challenged district without considering each of the individual challenged districts reveals a clear lack of narrow tailoring. Indeed, according to Bethune-Hill, this one-size-fits-all approach demonstrates that Delegate Jones and the House can establish neither a “strong basis in evidence in support of the race-based choice” nor that they “conduct[ed] a meaningful legislative inquiry.” Therefore, Bethune-Hill claims, the House cannot show that the district court committed clear error in finding that the district design process, based in the unique conditions of a single district, was not narrowly tailored. Bethune-Hill adds that the House’s “excuses” for its failure to narrowly tailor the process—including time constrains, lack of relevant data, and difficulty in complying with the VRA—are incorrect, unavailing, or both. Finally, Bethune-Hill concludes that requiring lawmakers to have a “good reason to believe its use of race was justified” and to develop a corresponding evidentiary foundation does not “ask too much” of lawmakers.