The constitutional law of partisan gerrymandering is one of the major issues facing the U.S. Supreme Court in its current term. But today it dealt with a politically significant case involving the older issue of racial gerrymandering — and did so in a manner that avoided the merits of the controversy. A lower court’s ruling that a Republican-drawn state legislative map represented an unconstitutional racial gerrymander was sustained by a 5-4 SCOTUS majority on grounds that the GOP-controlled House of Delegates (whose district lines were subsequently modified by court order) did not have standing to file an appeal over the wishes of the state’s Democratic attorney general, Mark Herring.
Virginia Republicans claimed the lower court ruling contradicted an earlier preclearance of the legislative map by Barack Obama’s Justice Department when it was first drawn up in 2011. But in an opinion written by Justice Ruth Bader Ginsburg, the Court majority held that “[u]nder Virginia law, authority and responsibility for representing the State’s interests in civil litigation rest exclusively with the State’s Attorney General.” So Herring’s predictable decision to accept a ruling benefiting Virginia Democrats was, in this view, the final word on the subject. An unusual coalition on the Court provided the majority: Clarence Thomas and Neil Gorsuch, along with Ginsburg’s usual allies Sonia Sotomayor and Elena Kagan, concurred with the decision. Samuel Alito wrote a dissent suggesting that this decision damaged the Virginia legislature’s essential integrity, and he was joined in that dissent by Chief Justice John Roberts and Justices Stephen Breyer and Brett Kavanaugh.
The timing of this decision is significant. Republicans hold a two-seat majority in the House of Delegates which the revised district lines imperiled in the state’s off-year elections this November (placing six GOP incumbents in majority-Democratic districts). If Democrats can flip the House (and also the state Senate, where Republicans also have a narrow majority), they will gain trifecta control over Virginia’s post-2020 redistricting process. Had Republicans prevailed at SCOTUS, Virginia’s legislative elections might have been thrown into chaos: Primaries using the revised lines were held just last week.
So Virginia’s GOP was essentially dealt a technical knockout by SCOTUS, and looking forward, we know that states with divided partisan control need to look to their own laws to determine which elected officials have the right to conduct litigation on their behalf.
