Virginia State Court to Consider Whether the Va. Legislature Lost Its Right to Draw Congressional Districts

Today a state court in Virginia, issued an opinion in Little v. Va. Board of Elections (a case I had not heard of and one that does not appear to be on Justin’s list of Va. redistricting litigation).  State law required congressional districts to be drawn in 2011.  They weren’t, and now plaintiffs are claiming that the Virginia legislature has lost the right to draw districts, and they must be drawn by the courts.

In the just-issued opinion, the court dismisses a number of objections which the state of Virginia made to these arguments, including sovereign immunity. But the court has not yet decided the ultimate issue: “The Court finds that it is also of major significance that since the Constitution of Virginia’s most recent revision in 1971, the General Assembly has without fail, until 2011, reapportioned Virginia’s electoral districts in the year following the federal decennial census.This fact, as well as those arguments previously raised, support the Court’s finding that the word “shall” in Article II, Section 6, speaks in mandatory, not directory, terms, stating that Virginia’s electoral districts shall be reapportioned in the year 2011.  However, whether the General Assembly’s failure to reapportion Virginia’s congressional districts in accordance with this constitutional mandate is a bar to its exercising this authority in 2012 is not decided at this time.”

The court also said that the issue is not made moot by recent legislative developments: “The Court is aware that a bill to reapportion Virginia’s congressional districts passed the House of Delegates on January 13, 2012 and the Senate on January 20, 2012.  As of the date of this writing, however, the Governor has not approved the bill, nor has it been precleared by the U.S. Department of Justice, or the U.S. District Court for the District of Columbia.  Notwithstanding this development, the issue to be resolved by the Court is whether the General Assembly has forfeited its constitutional responsibility to reapportion Virginia’s congressional districts because it failed to do so in the year 2011 as the Constitution of Virginia mandates.  The answer to this question is not rendered moot because of the passage of a new reapportionment plan in 2012.”

This is one to watch.

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