A Democratic activist who is suing Virginia elections officials told a federal appeals court that new House elections must be held this year under newly drawn legislative district lines, but the state said last year's elections were “perfectly constitutional” and the lawsuit should be dismissed.
The hearing before the 4th U.S. Circuit Court of Appeals Tuesday marked the latest turn in a long-running legal battle by Paul Goldman, a former state Democratic party chair who argues that House members elected in 2021 must run again in 2022 under new maps that properly align legislative districts with population shifts.
Much of the hearing was spent with the two sides arguing over whether Goldman has established he has legal standing to sue by showing that he was injured by the state's use of old district lines in the 2021 elections.
Goldman argues in his lawsuit that the failure to hold new elections this year would violate the “one man, one vote” principle outlined by the U.S. Supreme Court and give southwest Virginia, which has lost population, more representation than it is due at the expense of regions growing regions like Northern Virginia.
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“The citizens have the right to vote for a constitutionally sound legislature as soon as possible,” Goldman told the 4th Circuit.
The House elections that were held in November 2021 were supposed to be the first held under constitutionally required redistricting under the 2020 census. But because the census results were delayed, the state held elections under the existing legislative boundaries because new lines had not yet been drawn.
Goldman’s lawsuit argues that new elections must be held again this year under new maps approved by the Supreme Court of Virginia in late December.
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Goldman acknowledges that the delay in providing census results caused delays in the state’s reapportionment process. “But this federal failure doesn’t provide a constitutional ‘free pass’ for state officials to arbitrarily decide to violate ... constitutionally protected voting rights,” Goldman wrote in a legal brief.
Former Attorney General Mark Herring attempted to have the lawsuit thrown out, but U.S. District Judge David Novak ruled it can move forward against state elections officials. In October, Novak appointed a three-judge panel to hear arguments in the case.
Virginia Solicitor General Andrew Ferguson argued that Goldman does not have standing and urged the 4th Circuit to vacate Novak's ruling and send the case back to the lower court with instructions to dismiss the lawsuit.
“Our position is that the 2021 election was perfectly constitutional and no remedy for any constitutional violation was required,” Ferguson said.
Democrats held a 55-45 majority in the House of Delegates until Republicans took control of the chamber in the November 2021 elections. Republicans now hold a 52-48 majority.
Goldman asked the 4th Circuit to affirm Novak’s ruling and to remand the lawsuit to the three-judge panel so that the case may be decided on its merits. In recent weeks, voting rights and other civic groups including the American Civil Liberties of Virginia, the Virginia NAACP and the League of Women Voters of Virginia have issued statements of support for holding new elections this year.
If Goldman loses, elections won’t be held until 2023. House delegates serve two-year terms.
Most House members of both parties have been quiet on the subject. One former delegate, Democrat Lee Carter, requested an advisory opinion from Herring on the matter last year. But Herring, who lost his reelection bid in November to Republican Jason Miyares, never produced one. His office ignored repeated questions about the matter, and Goldman alleges the focus on procedure in the legal proceedings was a delay tactic.
Goldman also expressed frustration in a recent interview at the interest groups waiting so long to weigh in, saying it was essentially a move to save face.
“The message from the establishment in this state is: Don’t sue us. Unless you’ve got the biggest law firm and a million dollars you can’t win. We’ll drag it out, we’ll spend any amount of your money, any amount," he said.
Associated Press writer Sarah Rankin contributed to this report.