The Supreme Court heard oral arguments Monday in a case that asks whether lawmakers in Virginia unlawfully considered race when drawing the lines for congressional districts.
The case, Wittman v. Personhuballah, centers on Virginia’s 3rd Congressional District, which is now represented by Rep. Bobby ScottBobby ScottThe Hill's 12:30 Report A guide to the committees: House Repeal without replacement: A bad strategy for kids MORE (D), the commonwealth’s only black congressman
The Supreme Court has in the past ruled that congressional districts cannot be gerrymandered by race for partisan gain.
A lower court tossed out the Virginia redistricting plan, and elicited and ultimately settled on an alternative neutral redistricting plan during the remedial phase of litigation.
That lower court ruling was appealed to the Supreme Court by Rep. Rob Wittman and other Republicans from Virginia, including Reps. Bob GoodlatteBob GoodlatteGOP lays out regulatory reform wish list As former Copyright Office leaders, we support an autonomous register of copyrights The Hill's 12:30 Report MORE, Forbes, Morgan GriffithMorgan GriffithGOP whip won't commit to new CBO score before vote Medicaid work requirements could be added to ObamaCare bill The Hill's Whip List: 36 GOP no votes on ObamaCare repeal plan MORE, Scott RigellScott RigellGOP rushes to embrace Trump GOP lawmaker appears in Gary Johnson ad Some in GOP say Trump has gone too far MORE, Robert HurtRobert HurtDemocrat defeats controversial chair of House Wall Street subpanel Republican groups launch final ad blitz in key House battlegrounds Armed protester stands outside Dem's office for 12 hours MORE, David Brat and Barbara Comstock, as well as two former House members from the state, Eric CantorEric CantorBrat: New ObamaCare repeal bill has 'significant' changes Overnight Energy: Flint lawmaker pushes EPA for new lead rule House staffer, Monsanto vet named to top Interior posts MORE and Frank WolfFrank WolfTrump, global religious freedom needs US ambassador to lead Bottom Line 10 most expensive House races MORE.
One of the key questions facing the Supreme Court is whether those lawmakers have standing to file their challenge.
The lawmakers argue that, in the remedy for the unconstitutional 2012 plan, voters from Scott’s 3rd District were swapped out and replaced with white voters from one or more of the four adjacent districts. Those white voters are more likely to vote Republican, the lawmakers argue, so their chances for reelection could be harmed — giving them standing to challenge the plan.
Justice Sonia Sotomayor asked the attorney for the lawmakers, Michael Carvin, whether the case is moot now that Forbes, of the 4th District, is running for in the 2nd District.
“As I understand it, the vast majority of the districts of the representatives who are parties to this action have not been changed in any meaningful way,” she said. “Forbes is the only one who had, perhaps, a live claim, but he’s decided to run in another district. So how do we have a live claim of controversy?”
Carvin said the case is not settled because the injury as a result of the court-ordered plan was so severe that Forbes, who would have been the incumbent in the 4th District, was forced to run in a different district.
When Sotomayor asked if Forbes would run in the 4th District if the 2012 plan were upheld, Carvin said he “absolutely” would.
“That’s where he lives, that’s where he’s a 16-year incumbent, and that’s where he has a huge incumbency advantage,” he said.
Chief Justice John Roberts questioned whether it’s possible to determine the Virginia Legislature’s motive for putting more black voters into the 3rd District.
“Let's say you have 10 percent of the legislators say this is because of race — that's their motive — 10 percent say it's because of partisanship and 80 percent say nothing at all,” he said. “What is the motive of that legislature?”
Because it’s hard to discern motive, Carvin said the court has always instead looked at the effects of redistricting.
The lower court’s remedy, Carvin added, resulted in a complete dismantling of the 3rd and 4th districts.
Justices Samuel Alito, Anthony Kennedy and Elena Kagan, meanwhile, seemed skeptical of the plaintiff’s argument that the lawmakers lacked standing because they did not draw or enforce the 2012 redistricting plan.
“I don’t want to impute in any respect the motives of the Commonwealth of Virginia, but if it were the case that a state decided not to defend the Constitution, not to defend the legality of a districting plan that was adopted by the legislature, and that decision was made purely for partisan reasons, you would say that an elected official or a candidate who was severely, adversely affected by that should not be able to challenge it,” Alito said.
Marc Elias, the plaintiff’s attorney, told Alito his conclusion was correct.
“Not every injury in our society opens up the courthouse door,” he said.
Kennedy wanted to know whether voters could assert an interest in preserving incumbency and whether the Legislature as a whole could intervene. Though voters would only have a general grievance, Elias said the Legislature would have had better standing than the Virginia congressmen.
“So a legislature who passes the law has greater standing than the individual who was affected by the law?” Kennedy asked.
Kagan lobbed skeptical questions at Ian Gershengorn, the attorney for the U.S. government, which joined the plaintiffs in arguing that the lawmakers lacked standing.
“This is not Rep. Forbes saying, 'I want to choose exactly the set of voters that’s going to increase my own electoral chances,'” she said.
“This is Rep. Forbes saying, 'Look, there has been an act of the Legislature, and the act of the Legislature has given me a certain set of voters, and why don’t I have a legally cognizable interest in relying on that legislative judgment when some court has taken it away?'”
The justices experienced a little reconfiguring of their own on Monday, as the Supreme Court adapts to having only eight justices instead of nine, following the death of the late Justice Antonin Scalia.
The black drapes that were placed in front of the bench and over Scalia’s chair after his death last month have been removed and there is now a new seating arrangement. Justices who previously sat to the left of Chief Justice John Roberts are now on the right and those formerly on the right are seated to Roberts' left. One chair has been removed.
Scalia's death has left the court evenly divided with conservatives and liberals. A 4-4 tie in the Virginia case would mean the lower court ruling would stand, preserving the new districts.
Updated at 2:55 p.m.