The U.S. Supreme Court has agreed to hear new arguments in a Virginia racial gerrymandering case that could reshape the House of Delegates, offering Republicans another chance to defend the electoral map that is currently in the process of being redrawn by a lower court.
In its order list released Tuesday morning, the Supreme Court said it would take up an appeal from the House GOP and asked the parties to file briefings on whether Republican leaders have standing to challenge the lower court’s ruling.
Though it appeared the 2019 House elections would take place under a redrawn map after the lower court ruled portions of the map unconstitutional, the new Supreme Court proceedings raise the possibility that the existing map will still be in place for next year.
The exact schedule for the new Supreme Court proceedings was not immediately clear Tuesday, but the case is expected to be heard in the spring. The Supreme Court’s decision doesn’t automatically halt the lower court’s efforts to create a new map, but Republicans may ask for the process to be put on hold as their appeal continues.
A redrawn map could determine partisan control of the House, where Republicans currently hold a 51-49 majority after losing 15 seats to Democrats in 2017.
The Supreme Court has already heard the case once, ruling in 2017 that a district court used a flawed legal standard when it upheld the map as constitutional. After reconsidering the case with a narrower standard, the three-judge panel ruled in June that state lawmakers improperly prioritized race to draw African-American voters into 11 majority-minority districts in the Richmond, Petersburg and Hampton Roads areas.
The lower court ordered the General Assembly to draw a new map by Oct. 30, but the GOP-controlled House and Democratic Gov. Ralph Northam didn’t come to an agreement on a legislative fix. Last month, the court appointed its own expert to redraw the House map and set a deadline of March 28 for the enactment of a new map.
Two new conservatives — Justices Neil Gorsuch and Brett Kavanaugh — have been added to the Supreme Court since the first ruling, making it difficult to predict how things could play out.
Regardless of how the court rules on the merits, the initiation of more legal proceedings complicates the timeline for putting a new map in place.
Candidates are already lining up to run for General Assembly seats next year, and could be in the thick of primary season when the Supreme Court acts.
“If SCOTUS does not rule until June, that may be too late for the 2019 elections and so the old districts may need to be used,” said Carl Tobias, a professor at the University of Richmond School of Law. “SCOTUS could clarify this were it to issue a stay, but first the House GOP will have to request that.”
House GOP leaders said Tuesday they would take a few days to review their options before announcing their next legal steps.
Brian Cannon, executive director of redistricting reform group OneVirginia2021, said it might be impractical to completely stop the map-drawing process now only to have to pick it back up next year.
“You might end up with a situation where we have new maps proposed and obviously old maps still on the books,” Cannon said. “And SCOTUS might tell us in April or May which way we’re going.”
Republicans have argued the second ruling that went against them was based on muddled legal standards. In a statement Tuesday, House Speaker Kirk Cox, R-Colonial Heights, said the Supreme Court now has a chance to review “clear legal errors.”
“The case also gives the Supreme Court the opportunity to provide clear guidance and address the chaos that has resulted from a bevy of redistricting laws and court cases in this difficult and confusing area of law,” Cox said.
Republicans have said they had to consider race when crafting the 2011 redistricting plan, which passed with bipartisan support, in order to comply with civil rights protections in the Voting Rights Act. Democrats have argued the racial quotas used in the 2011 process diluted minority voting power and helped preserve an artificial GOP majority.
Marc Elias, the Democratic lawyer who brought the case on behalf of several African-American plaintiffs, said the new hearings will mark the third time the Supreme Court has heard recent redistricting challenges in Virginia.
“We have prevailed in each of the first two and expect to again here,” Elias said on Twitter. “What is most important is that the voters of VA have constitutional maps in time for the 2019 state house elections.”
House Democrats echoed those comments, saying in a statement there is “no reason for the lower court to delay” its pursuit of constitutional districts.
Attorney General Mark Herring had asked the Supreme Court to dismiss the appeal, arguing the House GOP has no standing to continue the court fight on Virginia’s behalf after the attorney general’s office, which typically defends the state government against lawsuits, declined to file an appeal.
All of the districts at issue are represented by Democrats, but the redrawn lines could have ramifications for neighboring districts held by Republicans.
The entire General Assembly map is scheduled to be redrawn in 2021 after the next census.