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Virginia legislature lacks standing to challenge redistricting decision

Virginia Lawyers Weekly//July 15, 2019

Virginia legislature lacks standing to challenge redistricting decision

Virginia Lawyers Weekly//July 15, 2019

After the Virginia Attorney General elected to not appeal a lower court decision holding certain redistricting violated the Equal Protection clause because it was based on race, members of Virginia’s House of Delegates took up the appeal. However, the court dismissed their appeal, holding they lacked standing.


In 2011, after the 2010 census, Virginia redrew legislative districts for the state’s Senate and House of Delegates. Voters in 12 of the impacted House districts sued two Virginia state agencies and four election officials, charging that the redrawn districts were racially gerrymandered in violation of the Fourteenth Amendment’s Equal Protection Clause.

The Virginia House of Delegates and its Speaker intervened as defendants and carried the laboring oar in urging the constitutionality of the challenged districts at a bench trial, on appeal to this court and at a second bench trial. In June 2018, after the second bench trial, a majority of a three-judge district court held that in 11 of the districts “the state ha[d] [unconstitutionally] sorted voters . . . based on the color of their skin.”

A few weeks after the district court’s ruling, Virginia’s Attorney General announced, both publicly and in a filing with the district court, that the state would not pursue an appeal to this court. The House, however, filed an appeal to this court, which the state defendants moved to dismiss for want of standing.


The House urges first that it has standing to represent the state’s interests. Of course, “a State has standing to defend the constitutionality of its statute.” No doubt, then, the state itself could press this appeal. And, as this court has held, “a State must be able to designate agents to represent it in federal court.” So if the state had designated the House to represent its interests, and if the House had in fact carried out that mission, we would agree that the House could stand in for the state. Neither precondition, however, is met here.

The House observes that Virginia state courts have permitted it to intervene to defend legislation. But the sole case the House cites on this point—Vesilind v. Virginia State Bd. of Elections, 295 Va. 427, 813 S. E. 2d 739(2018)—does not bear the weight the House would place upon it.

Moreover, even if, contrary to the governing statute, we indulged the assumption that Virginia had authorized the House to represent the state’s interests, as a factual matter the House never indicated in the district court that it was appearing in that capacity. Throughout this litigation, the House has purported to represent its own interests.

The House also maintains that, even if it lacks standing to pursue this appeal as the state’s agent, it has standing in its own right. To support standing, an injury must be “legally and judicially cognizable.” This court has never held that a judicial decision invalidating a state law as unconstitutional inflicts a discrete, cognizable injury on each organ of government that participated in the law’s passage. The court’s precedent thus lends no support for the notion that one House of a bicameral legislature, resting solely on its role in the legislative process, may appeal on its own behalf a judgment invalidating a state enactment.

We dismiss the House’s appeal for lack of jurisdiction.

Dissenting opinion

Alito, J., Roberts, C.J., Breyer, J., and Kavanaugh, J. dissenting:

I would hold that the Virginia House of Delegates has standing to take this appeal. The court disagrees for two reasons: first, because Virginia law does not authorize the House to defend the invalidated redistricting plan on behalf of the commonwealth and, second, because the imposition of the district court’s districting plan would not cause the House the kind of harm required by Article III of the Constitution. I am convinced that the second holding is wrong and therefore will not address the first.

Virginia House of Delegates v. Bethune-Hill, No. 18-281, June 17, 2019. S. Ct. (Ginsburg, J.), from EDVA USSUPCT No. 019-1-001, 22 pp.

VLW 019-1-001

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