New York Times
Supreme Court Denies Appeal of Virginia District Map
May 23, 2016
by Adam Liptak
WASHINGTON — The Supreme Court on Monday left in place a court-imposed congressional redistricting map in Virginia, dismissing a challenge from three Republican congressmen. The court’s brief, unanimous decision said the members of Congress had not shown that they had suffered the sort of direct and concrete injury that gave them standing to sue.
The court, therefore, did not rule on the larger issues in the case, Wittman v. Personhuballah, No. 14-1504, which concerned the role race may play in drawing legislative maps.
“We cannot decide the merits of this case unless the intervenor members of Congress challenging the district court’s racial-gerrymandering decision have standing,” Justice Stephen G. Breyer wrote for the court. “We conclude that the intervenors now lack standing. We must therefore dismiss the appeal for lack of jurisdiction.”
The court addressed a similar question last year in Alabama Legislative Black Caucus v. Alabama. By a 5-to-4 vote, with Justice Anthony M. Kennedy and the court’s four more liberal members in the majority, the court indicated that the Alabama Legislature had relied too heavily on race in its 2012 state redistricting by maintaining high concentrations of black voters in some districts.
The Virginia case started with a similar challenge to a map drawn by the state’s General Assembly. A three-judge federal court struck down the map, saying it had put too many black voters into an oddly shaped district, diminishing their voting power.
The court gave the General Assembly an opportunity to redraw the map, but lawmakers failed to act. The court then devised its own map.
Virginia at first defended the legislative map but switched sides after a change in administrations. The three Republican legislators — Randy J. Forbes, Rob Wittman and David Brat — intervened, saying they had been hurt by the court-ordered plan, which added Democratic voters to their districts.
Mr. Forbes, for instance, said the plan would “completely transform” his district “from a 48 percent Democratic district into a safe 60 percent Democratic district.”
His lawyer told the court when the case was argued in March that the change had forced Mr. Forbes to run in a different district.
“That’s where he lives, that’s where he’s a 16-year incumbent, and that’s where he’s got a huge incumbency advantage,” the lawyer, Michael A. Carvin, said of his client’s original district. “The injury that they imposed on him in District 4 was so severe it pushed him out.”
Mr. Carvin added that his client would “absolutely” run in his original district if the Supreme Court ruled in his favor.
Shortly after the argument, Justice Breyer wrote, the court received a letter from Mr. Forbes’s lawyers saying he would continue to run in the new district however the Supreme Court ruled. “Given this letter,” Justice Breyer wrote, quoting from a 2013 standing decision, “we do not see how any injury that Forbes might have suffered ‘is likely to be redressed by a favorable judicial decision.’”
The other two lawmakers said the court-ordered plan had hurt them by replacing part of their “base electorate” with “unfavorable Democratic voters.” Justice Breyer said that assertion was not backed up by evidence.
“Even assuming, without deciding, that this kind of injury” is legally recognized, he wrote, “Representatives Wittman and Brat have not identified record evidence establishing their alleged harm.”
“The party invoking the court’s jurisdiction cannot simply allege a non-obvious harm, without more,” Justice Breyer wrote. “Here, there is no ‘more.’ Representatives Wittman and Brat claim that unless the enacted plan is reinstated, their districts will be flooded with Democratic voters and their chances of re-election will accordingly be reduced.”
Justice Breyer said there was no such evidence.