More than halfway through the latest cycle of redrawing election districts after the 2010 census, the Supreme Court is still trying to sort out when those who draw the map rely too heavily on the race of the voters. It will be doing so in a case that has been to the Court once before, but the case may not even produce a decision this time on the key issue: the validity of a Virginia district for a single seat in the U.S. House of Representatives. Next Monday, March 21, the Court will hold one hour of oral argument on Wittman v. Personhubullah. The case reached the Court again in an appeal by all eight of Virginia’s current Republican members of the House (together with two others who no longer are in the state’s delegation but continue to be named). The lawmakers are seeking to defend the constitutionality of District 3 under the 2012 plan, which was struck down as a “racial gerrymander” in a split decision by a three-judge federal district court last June. Actually, that lower court has twice nullified the 2012 plan for District 3. Then, when the legislature last year could not agree on a replacement, the court fashioned a new one on its own. Adding to the strangeness of this case, the court-drawn map is the one that will be used in this year’s June 14 primary and November 8 general elections in Virginia, under an order by the Supreme Court last month.
The map drawn by the lower court is not being reviewed by the Justices now. If the 2012 plan were to be upheld by the Justices, then that plan would go back into effect for elections after this year. A final, clear-cut decision is not assured, for two reasons.
First, the Court hearing the case will have only eight members, which almost always raises at least the possibility of a four-to-four split. However, the last time the Court ruled on a “racial gerrymandering” case, one year ago, against state legislative districting in Alabama, the vote was five to four, and the late Justice Antonin Scalia was among the dissenters. If there were now to be a four-to-four split, that would simply leave the district court ruling intact, setting no precedent and with no Court opinion. The 2012 plan would be dead for future elections.
Second, and maybe more significant, is that the Court has not yet concluded that the present and former members of Congress had a right to enter the case (“standing to intervene”) to take a position on the shape of a district in which they do not live and which they do not or did not represent. Before agreeing to take on the case, the Court asked for further legal briefs on the “standing” question and, when it voted for review last November, it ordered additional briefing on that issue and indicated that it would remain open to be explored at the hearing.
Full Article: Argument preview: Once again, the issue is race : SCOTUSblog.