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Lawsuit Seeks Three-in-a-Row Elections for Virginia House of Delegates

A voter collects a slip of paper from women at a desk
A voter collects paperwork in the 2019 primaries. Virginia voters could see House of Delegates candidates on their ballots for the next three November elections if a federal court rules in favor of Richmond Attorney Paul Goldman. (Crixell Matthews/VPM News)

Candidates for Virginia’s House of Delegates could face three-in-a-row elections from 2021 to 2023 if judges agree with a lawsuit filed in federal court last week.

The complaint from Richmond attorney Paul Goldman argues the state would violate portion of Virginia’s Constitution as well as the Equal Protection Clause of the U.S. Constitution if it waits until 2023 to hold House elections on maps updated drawn using 2020 Census data. 

The case against Gov. Ralph Northam and the State Board of Elections hinges in part on changing demographics of Virginia. The current legislative maps reflect the Virginia captured by the 2010 Census. Districts in the “urban crescent” stretching from Northern Virginia to Hampton Roads have added residents faster than other parts of commonwealth since then. Votes in these faster-growing districts therefore become relatively less valuable than slower-growing localities -- a trend Goldman argues would violate the U.S. Constitution if it is allowed to continue until 2023.

Members of the House of Delegates are typically elected to two year terms in off-year elections -- in this case, in 2021 and 2023. Under ordinary circumstances, this year’s House elections would be held under new districts that reflect once-a-decade population data from the Census. 

But this year’s data was delayed by the pandemic. The new Virginia Redistricting Committee isn’t expecting to receive any Census data until mid-August, meaning the new districts won’t be ready in time for the November House elections. 

Further complicating the issue is language in Virginia’s Constitution that appears to require elections be held on the new maps this year. A statement posted to the Commission’s website highlights the ambiguity of the situation, noting that “it is for an appropriate authority to determine how the Commission may fulfill its constitutional obligations.”

No one stepped forward, prompting Goldman to file his suit in the U.S. District Court for the Eastern District of Virgina.

“The fact that none of the parties have complained on either side indicates to me that incumbents have entered into an unwritten incumbent protection act,” Goldman said in an interview. “They see no reason to subject themselves to three elections.”

Goldman describes himself in the complaint as a potential House candidate. He draws heavily on Cosner v. Dalton, a 1981 federal court decision that required Virginia to hold three-in-a-row House elections. That case stemmed in part from claims that legislative districts drawn by the General Assembly violated the one person, one vote legal precedent. The court ruled existing lines be redrawn because of substantial population deviation among districts. Because 1981 campaigns were already underway, it kept the existing districts in place for that vote and ordered a new election in 1982 using the new maps. 

William and Mary law professor Rebecca Green said Goldman’s suit was substantially different from that case. But she said some of the same principles still held given that the “2011 maps are heavily out of whack” with the state’s current population.

“It seems rational to request that a court impose the same remedy of an off-year election to address one person, one vote violations,” Green said in an email. “As the court concluded in 1981, this is a rational solution to a difficult problem.”

Goldman's solution -- or future lawsuits that arrive after the maps are drawn -- could force Democrats to defend their relatively new House majority up to three years in a row. Some members of the caucus, like Del. Mike Mullin (D-Newport News), are already bracing for the that scenario. 

“I suspect that we will have maps not for this cycle, but we will have next year, a whole new round of elections with new maps,” Mullin told a panel last week.

Del. Marcus Simon (D-Fairfax), who serves on the Virginia Redistricting Committee, said he had an “open mind” about three-in-a-row elections but said he is not convinced it is necessary. 

“In the 1980s, we deprived people of their civil rights, we had racially improper districts,” Simon said. “Given the circumstances for why we don’t have districts today, I don’t know that the same urgency would apply.”

Spokespersons for Speaker of the House Eileen Filler-Corn (D-Fairfax), GOP Minority Leader Todd Gilbert (R-Shenandoah) and Attorney General Mark Herring all declined to comment on the case. 

Editor's Note: This article has been updated to include comments from Del. Mullin.

Ben Paviour covers courts and criminal justice for VPM News with a focus on accountability.
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