On June 17, 2019, SCOTUS rejected a GOP-led appeal on a gerrymandering case that shuttled back and forth in the Commonwealth for a few years. In Virginia House of Delegates v. Bethune-Hill, the court found that the appellants lacked standing to represent the issue before the court.
Although the title of the case includes “Virginia House of Delegates,” this final attempt to overturn the decisions of two lower federal courts was, in fact, managed and financed by the state’s GOP. As Justice Ginsberg noted for the majority (Thomas, Sotomayor, Gorsuch, and Kagan), under state law only the Attorney General has the authority to represent the state in civil litigation. Last July, AG Mark Herring declined to pursue a further appeal from a federal court decision stating that chances of success were narrow and that the state had already spent several million dollars in litigation. Not satisfied, Assembly Majority leader Kirk Cox (R-Colonial Heights/Chesterfield) moved forward. Ginsberg characterized the GOP argument in this respect as “purported representation.”
Appellants further argued that the legislative body had the power to draw district maps, and that accepting a substitute drawn by the courts infrringed upon that authority. The majority pointed out that the power to draw district maps rested with both chambers of the General Assembly. The opinions differentiated a similar Arizona case by noting that in that instance, both chambers had joined in the challenge.
Appellants also maintained that the new maps would affect House membership. In response, the opinion noted that the House has no cognizable interest in the identity of its membership. On this point, the minority opinion by Justice Alito (joined by Roberts, Kavanaugh, and Breyer) found resonance. The minority wrote “to suggest that substituting one plan for another has no effect on the work or output of the legislative body whose districts are changed would really be astonishing.”
The new map affects 11 of the House’s 100 districts. It’s difficult to appreciate Alito’s understanding or vision as to the “effect on the work and output” of the House, given those proportions. Gerrymandering, by definition, is designed to favor the party identity of one political interest over another, which goes directly to Ginsberg’s statement that the House has no cognizable interest in the identity of its membership. Alito seems to believe a legislative chamber has a justiciable interest in that characteristic. More importantly, the proof of the pudding may likely be seen in the outcome of the 2019 campaign.