Virginia State Capitol (Photo: 8News)
By Dean Mirshahi, WRIC, July 5, 2022
RICHMOND, Va. (WRIC) — State lawyers are arguing that a lawsuit to force 2022 Virginia House elections was filed too late, and that adding elections this year would stir up “procedural and administrative chaos” in the electoral process.
The Virginia Attorney General’s Office has defended state election officials in two federal cases seeking to have the Eastern District of Virginia order House of Delegates elections this November under new legislative districts.
The federal court dismissed the first lawsuit for lack of standing nearly a year after it was filed, but the plaintiff has filed an appeal in that case. State lawyers filed a motion on July 1 to have the latest lawsuit thrown out.
“This is a case about delay,” the attorney general’s office wrote in the filing. “Almost a year after the first lawsuit challenging the constitutionality of the 2021 House of Delegates election, seven months after that election took place, and just over four months before the 2022 general election, Plaintiffs filed a lawsuit challenging the 2021 election.”
The new lawsuit was initially filed by author Jeff Thomas and later amended to include Loudoun County NAACP president Rev. Michelle C. Thomas and the local chapter’s former president, attorney Phillip Thompson.
The suit asserts the 2021 elections last November were held under a map drawn using 2010 census data that diluted the vote of those living in overpopulated districts. Unlike the previous case, the plaintiffs say they have legal standing to sue because they live in some of the most overpopulated legislative districts and argue that their votes in 2021 were weakened compared to voters in the least populous district.
Among other arguments, the state claims the court can’t provide injunctive relief to events that took place in the past and now lacks jurisdiction as a result.
U.S. District Judge David J. Novak has been critical of the delays that have held up the legal effort, signaling out the office of former Attorney General Mark Herring for “stall tactics” that led the first lawsuit to go through appeals before the issue of legal standing was resolved.
Novak agreed to fast-track the new lawsuit’s schedule, asking the plaintiffs and state to adhere to deadlines for filings so the court can decide on legal standing. The judge also called on the current AG’s office to provide why they have “clean hands” in the state’s previous efforts to keep the case from moving forward.
In the bid to have the lawsuit dismissed, state lawyers argue the case was filed too late and that the Eastern District of Virginia no longer has jurisdiction to rule on its merits.
“Their eleventh-hour filing entirely precludes their relief,” the AG’s office’s motion states. “Waiting more than half a year to challenge the 2021 election stripped this Court of jurisdiction: there is no ongoing conduct to enjoin, leaving this Court without any remedy to redress Plaintiffs’ alleged injuries.”
The state also disputed the plaintiffs’ claims that using districts drawn with 2010 census data for the 2021 House elections violated the Voting Rights Act and the equal protection clause of the Fourteenth Amendment, pointing to new census data delays at the federal level due to COVID-19.
“These claims fail utterly. Virginia did not violate the Constitution or federal voting-rights laws when delays in the receipt of census data—for which Virginia bore no responsibility—precluded it from conducting redistricting in time for the first election after the decennial census,” the motion to dismiss reads.
The state is calling on the court to bring the lawsuit “to a swift conclusion” with a dismissal, arguing that ordering new House of Delegates elections would lead to “chaos” with the primaries now over and congressional midterms months away.
“And Plaintiffs’ delay precludes equitable relief, which is generally unavailable to those who sleep on their rights and which would be particularly inappropriate given the procedural and administrative chaos it would foment in Virginia’s ongoing electoral process,” the AG’s office’s filing states.
The amended lawsuit calls for primary elections to be held on or before Sept. 13, 2022, and to hold the state House elections on Nov. 8, 2022, when the congressional midterms will be held. If the plaintiffs prevail in court and get through potential appeals, Virginia would have House of Delegates elections three years in a row.