Brian Gottstein, communications director for Attorney General Ken Cuccinelli, in response to a Star-Sentinel inquiry this week said, “Ultimately, if it’s decided that the [General Assembly] does not have the authority to redistrict, it would then be left to the courts.”
The Richmond Circuit Court last week could not definitively conclude in its decision whether Virginia’s General Assembly had the authority to pass a congressional redistricting plan in 2012 versus the end of 2011.
Cuccinelli then sought “immediate intervention by the Supreme Court of Virginia, given the impending elections and deadlines associated with the federal Voting Rights Act.”
He appointed former 1977 Virginia Attorney General Anthony F. “Tony” Troy of the firm Troutman Saunders. He had planned to argue that by precluding the GA from drawing the maps it violates the Constitution’s separation-of-powers provisions. The state is paying Troy’s fee of $195 per hour.
But on Tuesday the Virginia Supreme Court said that the circuit court’s ruling was not sufficiently definitive to permit immediate review. The Supreme Court also explicitly declined to read the merits of the underlying case.
Five Virginia voters brought suit contending that the General Assembly did not have the authority to pass redistricting in 2012.
Virginia’s constitution states that “The General Assembly shall reapportion the Commonwealth into electoral districts in accordance with this section in the year 2011 and every ten years thereafter.”
Richmond Circuit Court Judge Richard D. Taylor wrote, “If the Court concurs with the Defendants’ proposition that the word ‘shall’ in Article II, Section 6, is discretionary, then the General Assembly will have limitless discretion to reapportion Virginia’s electoral districts in any year it chooses.”
There were two redistricting plans the legislators were haggling over in 2011; one from the House of Delegates predominately controlled by Republicans and one from the Senate that in 2011 was controlled by the Democrats.
The legislators delayed congressional redistricting until 2012 when the Senate then had a 20-20 split with Lt. Governor Bill Bolling having the tie-breaking vote. Under the GOP’s control they would be able to preserve their 8-3 congressional district advantage. The House redistricting plan was passed soon after the 2012 General Assembly session convened and Governor Bob McDonnell signed it.
The Senate’s plan created an additional majority-minority congressional district in northern Virginia’s 4th held by Republican J. Randy Forbes. That plan failed.
The Black Caucus called the House plan a corralling of the black vote in Rep. Bobby Scott’s 3rd congressional district. Its leadership chastised six Black Caucus members including Roanoke’s delegate Onzlee Ware for supporting the House version.
In the Senate plan, Roanoke would have moved from Rep. Bob Goodlatte’s 6th district to Rep. Morgan Griffith’s 9th district along with Salem which are considered by some as “communities of interest.” If Salem comes out of the 9th then Griffith would remain in the 6th district.
Cuccinelli said that effectively with no decision by the Richmond Circuit Court the non-decision leaves it that the GA did not have the authority. Impending 2012 congressional elections leave candidates wondering where their constituents are.
Rep. Goodlatte’s Republican 6th district challenger Karen Kwiatkowski said: “Not knowing the district lines that will be respected for the 2012 primary is a factor in how we approach gathering petition signatures.” She expects Page and Warren counties to be added, Roanoke County retained but Salem going to the 9th.
U.S. Senate Tea Party contender Jamie Radtke has written that as she and her competitors gather signatures they run the risk of having signatures discarded for being in the wrong district.
Goodlatte’s 6th district Democratic challenger Andy Schmookler said that he is OK with the uncertainty but “it would be nice to have the boundaries settled. If the ultimate drawing of the district lines leaves out some of the people with whom I’ve developed relationships, I will not feel that my time was wasted.”
Attorney General Cuccinelli will ask the General Assembly to pass a bill containing an emergency clause to move congressional primaries to August. “If this is not done,” Cuccinelli said, “congressional primaries currently scheduled for June may be disrupted if the new district lines are not approved by the federal government within the short time frame remaining.”
Virginia is one of 16 states required by the Voting Rights Act of 1965 to pre-clear changes in voting practices or procedures with the Justice Department.
Cuccinelli stated that a suit for judicial pre-clearance (federal approval) has already been filed with the U.S. District Court for the District of Columbia, and the attorney general will also seek parallel administrative pre-clearance through the U.S. Department of Justice.