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Uncertainty Reigns as Court Takes Over Virginia Redistricting

Federal judges will now decide how to unpack blacks from Scott's 3rd District (Bill Clark/CQ Roll Call File Photo).

The same federal three-judge panel that has twice ruled that Virginia's congressional map unconstitutionally packs blacks into the 3rd District will now be responsible for remedying the injustice it found.  

How will the court arrive at a new map for the 2016 elections? "We don’t know," Loyola Law School Professor Justin Levitt told CQ Roll Call Tuesday. "I think they were really hoping the legislature would do it." The court had given the General Assembly a Sept. 1 deadline to redraw district lines, and Democratic Gov. Terry McAuliffe had called a special August session to begin that process. But the state Senate failed to agree on a map Monday, when a dispute over a Supreme Court appointee derailed the session.  

Democrats and one retiring Republican in the state Senate adjourned the session, leaving it up to the court to redraw the lines. It was widely expected  that the GOP-controlled General Assembly and the governor wouldn't be able to come to an agreement, and the court would inherit the responsibility anyway.  

Democrats say they have little to lose from the redraw going to the court given how outnumbered they are in the state's delegation. Republicans currently hold eight of the state's 11 congressional seats, and Democrats are expected to pick up at least one seat in the redistricting process.  

“I have faith in the court doing what it needs to do to uphold the rights of the citizens of Virginia,” said Marc Elias, an attorney for the National Democratic Redistricting Trust who represented the plaintiffs in the suit against the 3rd District lines. In a statement Monday evening, McAuliffe advocated a “comprehensive approach" to redrawing the map "that starts from the beginning and erases the taint of racial and partisan politics that poisons the old unconstitutional map.”  

Virginia is not alone when it comes to courts redrawing congressional maps, said Levitt, who tracks litigation over congressional maps on his blog , "All about Redistricting." But based on how state and federal courts have proceeded in other states, Levitt doesn't expect the three-judge panel to radically alter the state's district lines.  

"They will try to keep whatever manifest preferences came out of whenever the last time federal lines were drawn," while still addressing the immediate problem — in this case the unconstitutional packing of Democratic Rep. Robert C. Scott's 3rd District, Levitt said.  

"The vast majority of judges will tell you they hate it," Levitt said of the responsibility, because judges are forced to make choices for which there is no legal answer — how to equalize populations across districts, for example, or which communities to lump together.  

That said, any change to one district's lines necessarily alters other districts. "Even a small change can end up changing a lot," Levitt said. But "it's not the norm for a court to start with a blank sheet of paper," he added, comparing the redraw process to editing an already existing manuscript. The three-judge panel could solicit submissions from the parties to the original case. It could also open input up to the political parties, as well as to interested citizens.  

Ahead of the special session, Democratic state Sens. Chap Peterson and Mamie Locke each proposed redistricting plans.  

Republicans did not submit a proposal, but Levitt expects that all interested parties are currently drawing up their own maps.  

The nonpartisan OneVirginia2021, an organization that fights for transparency in redistricting, is still deciding whether to propose its own map. But Executive Director Brian Cannon told CQ Roll Call on Tuesday that its ultimate goal, now that the responsibility lies with the court, is for someone in the government to call an advisory commission, which would propose an independent map that the court could consider.  

While anyone could call such a commission at any time, Levitt said "the timing is tight" if the court is to begin the redraw process by Sept. 1.  

Aside from soliciting proposals, the three-judge panel may also choose to appoint a so-called special master, often a law professor or political scientist with no partisan affiliation, retained by the court to draw the maps.  

"It is almost certain that the three judges won’t themselves be putting the pen to paper," Levitt said. "They will either choose to evaluate submissions or they will engage a special master, with redistricting expertise, to draw it." The three-judge panel first tossed out the state's congressional map in October , but that decision was appealed. In March, the Supreme Court sent the Virginia case back for review to the lower court, which again found that the 3rd District diluted blacks' influence in other districts.  

But the court's previous rulings don't lead Levitt to think the court will address anything other than the unconstitutional packing of the 3rd District.  Meanwhile, the GOP members of the Congressional delegation are still appealing the lower court's ruling to the Supreme Court, which is expected to announce this fall whether it will hear the case.  

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