"The court need only listen to what the Republican lawmakers who benefit most from this gerrymander have conceded to the court." An unlikely outcome.

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Virginia Republicans Admit They Rigged The State’s Congressional Districts To Elect GOP Lawmakers
By Ian Millhiser, October 1, 2015

Virginia is one of the most gerrymandered states in the country. During the last presidential election, President Obama won the state by three points, but Republicans still picked up 8 of the state’s 11 congressional districts under the GOP-friendly maps drawn by the state legislature.

In a court filing offered by the Republican members of Virginia’s congressional delegation, the lawmakers who benefit most from these gerrymandered maps admitted that the GOP intentionally rigged the state’s congressional districts in order to produce a lopsided delegation. The state legislature’s “overarching priorities” in drawing the maps, according to the court filing, was “incumbency protection and preservation of cores to maintain the 8-3 partisan division established in the 2010 election.”

2010 was a very good year for Republicans, enabling the GOP to capture unusually large portions of state congressional delegations. 2012, by contrast, was a strong year for Democrats which saw the reelection of President Obama. And yet, by these Republican lawmakers’ own admission, the maps drawn between the 2010 and 2012 elections were draw[n] for the explicit purpose of ensuring that the GOP’s unusually strong performance in 2010 would be replicated year after year — even in years when the electorate was more favorable to Democrats. The GOP’s goal, in other words, was to render congressional elections little more than political theater, an annual ritual that would produce the same 8-3 delegation every single time.

The lawmakers’ admission that Virginia’s maps were drawn to lock in a delegation that’s unusually favorable to the GOP came as part of ongoing litigation over the legality of the state’s maps. As a general rule, the Supreme Court does not permit lawsuits challenging partisan gerrymandering (that’s despite the fact that a majority of the Court has, at times, indicated its belief that partisan gerrymanders can violate the Constitution). Under current precedents, however, congressional maps can be struck down because they engage in an impermissible racial gerrymander. And, indeed, a federal court did strike down Virginia’s current maps because of a racially impermissible district.

Various interest groups are now fighting over how the court should redraw the Virginia’s maps in order to cure the problem with this district. The brief filed on behalf of the state’s Republican members of Congress argues that the court is obligated to draw this map in order to preserve the state’s partisan gerrymander — essentially requiring the court to maintain the same 8-3 partisan split that Republican lawmakers sought to lock in when they drew the original map. Quoting past Supreme Court decisions, the Republicans argue that “when ‘faced with the necessity of drawing district lines by judicial order,'” a court must “be guided by the legislative policies underlying” the original maps “‘to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act.”

There is, indeed, some precedent supporting the idea that courts should not second-guess the decisions of state mapmakers, unless those decisions violate the Constitution or federal law. But the Republicans’ proposal confounds two distinct legal concepts and assumes, wrongly, that partisan gerrymanders are constitutional.

In the 2004 case Vieth v. Jubelirer the Supreme Court held 5-4 that a particular partisan gerrymandering suit could not proceed. Notably, however, the Court did not declare that gerrymander constitutional. Rather, it rested its opinion on the notion that courts are not often competent to determine when a partisan gerrymander has occurred or to devise a way to fix it. As Justice Antonin Scalia wrote for a plurality of four justices, “no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged.”

The key fifth vote was supplied by Justice Anthony Kennedy, who also warned that “we have no basis on which to define clear, manageable, and politically neutral standards for measuring the particular burden a given partisan classification imposes on representational rights.” Thus, he concluded that many partisan gerrymanders would have to be tolerated — even if they violate the Constitution — because he did not believe that courts currently have the tools they need to identify and cure such gerrymanders.

Significantly, however, Kennedy also left open the possibility that a standard could emerge in a future case that would allow partisan gerrymanders to be challenged in court. He also strongly suggested that these gerrymanders violate the Constitution. “First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views,” Kennedy wrote. “In the context of partisan gerrymandering, that means that First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters’ representational rights.”

Scalia and Kennedy’s concern that it is difficult for judges to develop a principled rule that allows them to sort unconstitutional gerrymanders from some other kind is not frivolous. Does a map become unconstitutional if Republicans make up 40 percent of a state’s voters but 45 percent of its members of Congress? What if Republicans receive 60 percent of the state’s congressional seats? What if they receive none of them? At least in marginal cases, it is not at all easy for judges to tell an intentionally gerrymandered state from a mere mathematical anomaly.

But Virginia is not a marginal case. Among other things, in most partisan gerrymandering cases, the state’s Republican delegation to the House of Representatives typically does not show up in court with a brief openly admitting that the state’s maps were drawn with the explicit purpose of rigging congressional elections in order to ensure an 8-3 delegation. This is not, in other words, a case where there are “no judicially discernible and manageable standards” that will enable a court to determine whether a particular set of districts constitutes a partisan gerrymander. The court need only listen to what the Republican lawmakers who benefit most from this gerrymander have conceded to the court.

The Republican lawmakers’ admission, in other words, should enable the courts to broaden the scope of this litigation. It is an admission that each of the state’s districts was drawn with an anti-democratic and, if Justice Kennedy is to be believed, unconstitutional purpose, and should justify tossing out the entire map. This is, admittedly, an unlikely outcome given the current makeup of the Supreme Court, but it is the correct outcome under the Constitution.
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