By Jim McCarthy and Michael Fruitman
On March 1, 2017, SCOTUS remanded Bethune-Hill v. Virginia State Board of Elections back to the Eastern District of Virginia, having ruled that the lower court had employed an incorrect legal standard in determining that race did not predominate in the legislature’s 2011 drawing of district maps following the 2010 census. In compliance, the Eastern District ruled on June 26, 2018, that the legislature had to prepare a new map by October 30. It concluded that the map was racially gerrymandered.
Virginia Attorney General Mark Herring, whose office is statutorily obligated to defend state agencies, announced that the June decision would not be appealed on behalf of the Board of Elections, citing the high probability of losing. Notwithstanding, the Virginia House GOP, by way of Speaker Kirk Cox, has filed an appeal and requested a stay of the court’s order to prepare a new map.
It’s crucial to keep in mind that the GOP is not a defendant in the original action but, under federal rules, an intervenor party on behalf of the Board of Elections in support of the district boundaries from 2011.
The pressure upon the legislature has been intensified, as the court on August 8 issued an order with a two-week deadline of August 24 to the House GOP to declare whether it plans to comply with the October 30 deadline. This court action followed the GOP challenge of the June decision. Although the 2011 map was approved on a bipartisan vote in the General Assembly, the Democrats are not joining the appeal, as the moral high ground has been clearly defined by the court. A special session of the legislature is planned for this Thursday, August 16.
At the same time, AG Herring is challenging a $4-million request for legal fees from a law firm that successfully litigated Bethune-Hill. Herring’s office said in an August 9 court filing that Perkins Coie is seeking a “genuinely astounding fee award” after winning the June ruling.
As VoxFairfax reported on August 6, millions of dollars in taxpayer funds have been consumed in this litigation over the past several years. Now, however, the contest has transformed from defending a state ministerial action [drawing electoral maps] to one of defending [namely, appealing] a court ruling declaring that map an unconstitutional racial gerrymander.
If that’s the goal, belief, and position of the state GOP, it’s one thing–and the state GOP can pay for the appeal from its own resources. The interests of the Commonwealth have been settled and it should not incur another dime of expense to litigate racial discrimination.