The sun rises over the Virginia Capitol. (Ned Oliver/Virginia Mercury)
By Graham Moomaw | August 1, 2022
A federal judge on Monday dismissed a last-ditch effort to force new Virginia House of Delegates elections in November, concluding the pandemic-related delay in the state’s redistricting process can’t justify the “extreme” step of ordering an election do-over.
In a 49-page opinion, U.S. District Judge David. J. Novak ruled the plaintiffs in the case don’t have standing to sue the state and the federal courts lack the authority to order a new election. With early voting for the 2022 elections set to begin next month, Monday’s ruling appears to be the end of the line for efforts to hold new House elections this year.
The case centered on the constitutionality of Virginia’s 2021 elections and the state’s seeming inability to redraw its political maps on schedule due to the late arrival of 2020 U.S. Census data.
The legal challengers argued the state violated Virginians’ voting rights by failing to conduct redistricting on time and allowing impermissibly large differences in population size among House districts that are supposed to contain roughly the same number of people. The state defended the process on largely technical grounds, suggesting the delay was out of its control and the matter has already been resolved by the drawing of new House maps that will be used in the 2023 General Assembly elections.
Novak, the same judge who dismissed a similar suit this year brought by Democratic attorney Paul Goldman, wrote that “the global pandemic delayed the reapportionment process just as it disrupted nearly every aspect of American life.” Virginia will hold its 2023 elections, Novak said, “using different maps drawn by the Supreme Court of Virginia in accord with the Constitution of Virginia.”
“Accordingly, this federal court cannot usurp the authority that the Constitution grants Virginia over its elections and, therefore, cannot grant the relief requested by plaintiffs,” Novak wrote. “At bottom, plaintiffs claim an injury that defendants did not cause and that the court cannot redress.”
The plaintiffs in the second case were Jeff Thomas, a Richmond-area author of several books on state government, Loudoun County NAACP President Michelle Thomas, and Loudoun resident Phillip Thompson, a voting rights activist who closely followed the state’s redistricting process.
The more recent lawsuit brought in new legal issues than those raised by Goldman, allowing arguments that minority voters in Loudoun, one of the state’s fastest-growing localities over the last decade, were particularly harmed by having their votes count less than those of Virginians in more sparsely populated areas.
“Taking away people’s rights seems to be what federal courts are doing these days, consistent with today’s radical reinterpretation of the long-settled right to one-person one-vote,” Jeff Thomas said after the ruling was issued. “It’s not surprising: it’s straight politics.”
Though the state suggested any harm from the redistricting delay had already been resolved with the drawing of new House districts, Goldman and Thomas said they were being continually harmed by living under an improperly elected legislative chamber.
Novak rejected those claims, saying any harm was minimal and not sufficient to warrant the extraordinary step of dissolving the current House ahead of schedule.
“Any harm will last only one session of the General Assembly, and could be ameliorated in subsequent terms,” Novak wrote. “Plaintiffs have not specified any particular difficulties they have had or will have with petitioning their delegates that arises from the alleged dilution of their representational strength. Nor have they alleged any actions or inactions by the General Assembly that harmed them.”
The judge faulted the plaintiffs for waiting until June to file the second lawsuit, mere months away from the start of early voting for November’s elections. He also dinged former Attorney General Mark Herring’s office for dragging out the first suit through “inexcusable piecemeal litigation” tactics that delayed it by eight months.
“The court expects more from the Attorney General’s Office, given that it represents the citizens of Virginia,” Novak wrote. “It should seek the speedy and just resolution of disputes affecting the citizens of Virginia, especially those related to the election of Virginia’s representatives. Although the court does not believe that the Attorney General’s Office engaged in any bad faith efforts to stall the litigation, it still finds the litigation conduct unacceptable, and cautions that any such piecemeal litigation in the future will not be tolerated.”
Herring’s office filed an appeal in the early stages of the Goldman case, leading to months of arcane legal wrangling over which issues were before which judges without fundamentally altering the direction of the case.
Attorney General Jason Miyares, a Republican who defeated Herring last year, took over the state’s defense upon taking office in January.
“I’m glad that the court once again agreed with my office, that there is no more uncertainty for voters and legislators, and that we were able to protect the integrity and validity of our 2021 elections,” Miyares said in a statement Monday.
Last month, a federal appeals court upheld Novak’s dismissal of Goldman’s lawsuit.