JUST when Virginia thought the debate over redistricting had finally simmered, a circuit court decision last week invalidated last year's organization of legislative seats throughout the Commonwealth. The unusual circumstances surrounding the decision, coupled with the potential precedent being set, seized the attention of political and legal experts throughout Virginia. In light of the high stakes surrounding the appeal, Gov. Mark R. Warner should join the appeal and appoint special counsel to relieve the Attorney General in litigating the case.
The events leading up to the decision vary according to whose account one desires to believe. Put simply, the Republican-led General Assembly drafted and adopted (along with eight dissenting Democrats in the House of Delegates) a plan to divide the Commonwealth into districts for the state legislature, as required every 10 years. As the Democrats had done for decades before, the new Republican majority created a system that heavily favors, predictably, their domination for the foreseeable future. This resulted in oddly shaped districts along with many that contained high concentrations of minorities. This districts ensure a minimum degree of minority representation in the legislature, while providing a climate for Republican domination in the mostly-white composed districts.
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Several Democratic legislators found this unfair and filed a suit to invalidate the new district map. Avoiding the Republican-favored political climate of the Richmond Circuit Court, several Southwestern legislators filed the suit in Roanoke instead. Judge Richard Pattisall agreed to hear the case after publicly stating plans to not seek reappointment from the General Assembly. Yet the proposed retirement package for state employees failed during the session, and to seek maximum benefits Judge Pattisall decided to stay on the bench for another 6 months. The day after he received word that he would not be reappointed to the bench, Pattisall released his controversial decision overturning the Republican district plan and called for new elections in the fall. His decision was legally sound because of racial considerations made when Republicans gerrymandered many Tidewater districts.
Ignoring rebuttals that it was their own politicized appointment process that brought this about, Republicans have seized on the development to paint Pattisall as a biased hack who is using the bench as a means of political manipulation. This ignores significant evidence to the contrary. The judge released a 51-page decision on the case, documenting cases where districts had been racially gerrymandered and that others violated legal standards for compactness and contiguity. These two requisites ensure that legislators may efficiently represent districts that make geographic sense.
The Voting Rights Act of 1965 sets forth broad standards that must be met and approved by the U.S. Department of Justice. Though they did not overturn the Republican plan, they are not in fact a legal body. Del. Chip Woodrum (D - Roanoke), a plaintiff in the case, stated, "The court, which the Justice Department is not, carries the final authority to uphold or strike down the districts." The Circuit Court of Roanoke County has done so. Whether or not Judge Pattisall was correct in doing so, the case should now be heard by the Supreme Court of Virginia. They should be the final legal authority in interpreting the compactness and contiguity of the Republican plan and deserve to hear the case.
Besides, what are the Republicans so worried about? Legally, the Supreme Court of Virginia is the most conservative court in the Commonwealth. However, the question of how the Governor should deal with the appeal is an interesting one.
Warner, a Democrat, is constitutionally provided legal counsel by Attorney General Jerry Kilgore, a Republican. Thus far, Kilgore has refused to meet with Warner to discuss the case lest he divulge legal tactics used by the Republicans to counter the decision. Rather than fight Kilgore, Warner should utilize representation by outside counsel, as he is constitutionally entitled. This affords him trustworthy legal advice and frees Warner to focus more of his energy on the state budget that currently awaits his review.
The Governor has better things to do than engage his political capital in a boxing match with the Attorney General. He should let the case go to the Supreme Court and depend on advice of outside counsel. For their part, the Republicans should also allow the case to be heard instead of working to discredit Judge Pattisall publicly. The political implications surrounding this case are numerous. It will determine the future of redistricting in Virginia, open the door to close inspection of the judicial appointment process, mark precedent for the legal relationship between attorney general and governor, and likely decide the degree of partisan dominance in the General Assembly for the foreseeable future. The Supreme Court must hear the case.
(Preston Lloyd's column appears Thursdays in The Cavalier Daily. He can be reached at plloyd@cavalierdaily.com.)
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