At oral arguments on the case brought by 10 current and former Republican members of Congress, the four justices who make up the liberal wing of the court expressed doubt not only about the case, but that the lawmakers had the right to bring the challenge at all. Whether members of Congress can interject themselves in legal disputes over the borders of neighboring districts is the crucial question in this case.
If the liberal bloc sticks together in the decision, expected before June, it would be enough to cause at least a 4-4 tie on the court, which has had a vacancy since the death of Antonin Scalia on Feb. 13. A split would uphold the lower court ruling that ultimately caused new districts for the November congressional elections.
The Virginia congressional primary is scheduled for June 14.
The lawyer for the lawmakers, Michael Carvin, argued that the Republican lawmakers should be able to appeal the lower court’s decision when it hurts their chances for re-election — particularly Rep. J. Randy Forbes, who abandoned the 4th District to run in the 2nd District after a court-issued map took effect this year.
Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan repeatedly challenged him on that point.
Sotomayor pointed out that none of the Republican lawmakers appealing the lower court ruling live in the 3rd District, and now Forbes has moved out of the 4th District, the most affected district. The challenge is from Forbes and GOP Reps. Rob Wittman, Robert W. Goodlatte, Morgan Griffith, Scott Rigell, Robert Hurt, Dave Brat and Barbara Comstock, as well as former members Eric Cantor and Frank R. Wolf.
The 2nd District — which became slightly more Republican under the new map — opened up for Forbes when Rigell announced his retirement . He’ll first have to make it through a primary against Del. Scott Taylor in the Leans Republican seat.
President Barack Obama twice carried Virginia, and the state’s two senators and governor are Democrats. But Republicans dominate the current congressional delegation with eight seats to Democrats’ three. Under the new map, the 3rd and 4th Districts are safe for Democrats. In the 4th District, which is now effectively an open seat, Democrats are expected to rally behind state Sen. Donald McEachin, who announced his candidacy last week .
'Standing Rule' Carvin said that if the lawmakers don’t have the legal right to appeal, called standing, then federal courts could hijack the intensely political process of redistricting.
Sotomayor called that “an incumbency protection standing rule” and asked if Forbes would go back to run in his old district if the Supreme Court sided with the Republican lawmakers and instituted the old congressional map.
“Absolutely,” Carvin replied.
Breyer grappled with the potential fallout of allowing the lawmakers to pursue this case, saying that each new map would open up the door to many lawsuits because “every plan will hurt someone.”
Marc E. Elias, the lawyer representing the voters in the 3rd District that brought the challenge, told the justices that voters choose candidates, not the other way around.
“Members of Congress do not have a legally protected interest to choose their voters,” Elias said.
Carvin countered by saying that the state legislature draws the districts, “not the federal judiciary.”
Meanwhile, Chief Justice John G. Roberts Jr. appeared to search for a way to send the case back to the three-judge panel of federal district court judges who decided the case.
Roberts repeatedly asked the lawyers how a court could determine the intent of a state legislature where there are competing reasons for redistricting and the majority of state lawmakers make no comment on it at all.
Roberts said the lower courts never made the plaintiffs, the voters in the 3rd District, produce a map how the district would have looked differently if race had not been the predominant factor in redistricting.
The plaintiffs argued that the redistricting was unconstitutional because the state set a benchmark of 55 percent black voters in the 3rd District. The state said it did so to comply with the Voting Rights Act, but the plaintiffs say setting such a benchmark shows that the state considered race first in drawing the lines.
A federal three-judge panel in 2014 found those lines to be an unconstitutional gerrymander, and decided Jan. 7 to select a new congressional map and put it into effect for this year's elections.
Conservative Justice Samuel A. Alito Jr., who made comments that he thought Virginia made a political decision when it decided not to appeal the lower court’s ruling, hinted that the case is likely the last of it’s kind unless Congress revises the Voting Rights Act.
The Supreme Court, in a 5-4 decision, struck down an important enforcement provision of the Voting Rights Act in 2013. Virginia was attempting to satisfy that requirement with the redistricting.
The case is Wittman v. Personhuballah, Docket No. 14-1504.
Simone Pathé contributed to this report.
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