by Davis Walsh

Virginia’s House of Delegates appears ready to push Congressional redistricting to 2012, when Republicans will effectively control both the Commonwealth’s House and Senate. But such an action may be impermissible because Virginia’s Constitution, Article II, Section 6, mandates redistricting be completed in 2011, but the Constitution prescribes no express penalties for the failure to adopt a plan in 2011. The question that this situation presents is whether the General Assembly can ignore a provision of the Commonwealth’s Constitution when that provision includes no penalties.

Earlier this year, the Democrat-controlled Senate and Republican House of Delegates agreed on state General Assembly redistricting,  but each house passed competing plans for Congressional redistricting. The Republican House of Delegates plan would keep the Commonwealth’s split of eight Republicans and three Democrats in Congress. The Democratic Senate’s plan would create a new minority influence district, which would provide minorities with a substantial number of voters in a district but not a majority.

Originally, the General Assembly planned on returning after the state’s legislative elections to finalize a Congressional reapportionment  plan, but in November the Republicans won two additional seats in the Senate creating a Republican “working majority.” Combined with its majority in the House of Delegates, the Republicans will control the legislative process when the new General Assembly starts in 2012. With this newfound power, Speaker of the House Bill Howell declared that redistricting would wait until the new legislature with Republican control was  sworn in.

This strategy of waiting for a Republican-controlled legislature had been discussed before, but it was the top Republican negotiator for the House of Delegates shot down that tactic. In June, it was leaked by national Republican operatives that the party’s strategy was to delay redistricting until after the elections, but House redistricting leader Delegate Bill Janis quashed those rumors saying that “[w]hile that strategy was discussed, it would appear to run afoul of the state Constitution.

Delegate Janis’s statement raises the important question: is it unconstitutional to push redistricting? The answer appears to be yes. Virginia’s Constitution is clear. Article II, Section 6 states “The General Assembly shall reapportion the Commonwealth into electoral districts in accordance with this section in the year 2011 and every ten years thereafter.”  Within that statement no ambiguity exists. In a number of cases, the Virginia Supreme Court has been explicit that “if a constitutional provision is free of ambiguity, construction is impermissible and resort to legislative history or other extrinsic evidence is not allowed[,]” only the text of the document governs. The Constitution is explicit that the redistricting occur in 2011, and therefore, pushing the redistricting would “run afoul” of that constitutional provision.

Although pushing redistricting back to 2012 would run contra to the express provision of the Constitution, it might not matter because this provision has no teeth. As Mary Spain, a senior attorney for the General Assembly’s Division of Legislative Services, notes there are no penalties within the Constitution if redistricting is delayed. This raises a second question of how would the courts view a post-2011 plan.

One possibility would be that this provision would require the courts to take over the process in the event the legislature failed to adopt a plan in 2011. But, Federal Courts, including the Supreme Court, have looked favorably on legislative redistricting plans, whenever those plans are passed. The Supreme Court in League of United Latin American Citizens v. Perry, wrote that state legislature plans are preferred because “drawing the lines for congressional districts is one of the most significant acts a State can perform to ensure citizen participation in republican self-governance.” In Perry, the plan was a mid-decade redistricting plan that replaced a court-drawn plan.

Similar to the United States Supreme Court’s finding, the Virginia Supreme Court wrote in Brown v. Saunders that redistricting “is, in a sense, political and necessarily wide discretion is given to the legislative body.” But the case, however, provides challengers with an avenue to have a post-2011 plan declared unconstitutional.  

In Brown, the court declared that the question of whether a reapportionment plan violated the Constitution was a question for the judiciary. In that case, the plan did violate the Constitution as the districts did not follow the Constitution’s population equality requirement. Although it seems like a basic principle, the court in Brown opened the door to challenging a plan on the grounds that it violates the Commonwealth’s Constitution. The Brown Court found that although the legislature should be given significant deference, it is not immune from the limitations of the Constitution. In a similar way, challengers to a post-2011 plan can argue that no deference should be given to any unconstitutional plan, regardless of why the plan is unconstitutional.

Ultimately, it is unclear how a court would respond to a constitutional challenge. The question that such a challenge would put forward is whether the Constitution matters if the constitutional provision in question has no teeth. Further, declaring a post-2011 plan unconstitutional on the grounds it violated that specific provision of the Constitution, would mean that the legislature could not try again. If the courts find that a post-2011 plan is unconstitutional, the courts cannot send the plan back for a rewrite because all plans at that point would be post-2011.

One thing the Republicans and Democrats agree on is that it is likely the plan will be challenged in court, for a variety of reasons. One Republican Senator summed up the situation as “[t]his is not going to be one of our better hours, either way.

Davis Walsh is a third-year law student at William and Mary


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