There’s a possible October surprise brewing in Virginia politics. The surprise may come from an Oct. 12 hearing before U.S. District Court Judge David J. Novak [1] in Richmond. The big issue: whether the November elections for the House of Delegates are constitutional.
I’ve written about this lawsuit before [2], but here’s a quick recap:
The plaintiff in the case, my former Post writing partner Paul Goldman, alleges the House districts in place for the November election are based on 2010 Census data, a clear violation of the plain wording of Virginia’s constitution [3]. Goldman filed his lawsuit in June.
Virginia Attorney General Mark R. Herring’s office will argue that Goldman’s case should be dismissed because the state has sovereign immunity — it can’t be sued unless it agrees to be sued — and that immunity extends to state officers and boards, such as the state Board of Elections.
Court watchers will have their own guesses as to how the hearing will play out. But it’s worth noting that the hearing was originally scheduled for Oct. 27. Election Day is Nov. 2.
Outside the courtroom drama, there are the bigger political questions one might think would be blanketing the airwaves and clogging voters’ mailboxes.
The biggest issue of all: Why has Herring, running for a third term as state attorney general, drawn out this case? Del. Lee J. Carter (D-Manassas) requested a formal opinion [4] from Herring in late April on “the constitutionality of the 2021 elections for the House of Delegates being conducted under electoral districts established in 2011.”
Herring has still not responded [5] to Carter’s request, though state law makes it clear he is required to do so [6]. His office said Wednesday that it would not comment on pending litigation.
What’s the big deal? The census data was late owing to the coronavirus [7] pandemic and — as Herring and other attorneys general argued — Trump administration efforts to “sabotage [8]” the census.
The delay meant Virginia’s redistricting process, under a new bipartisan redistricting commission, got a very late start redrawing House maps. It’s not the commission’s fault, but the constitutional problem remains. What to do?