by Steve Emmert

(Steve Emmert, who formerly published the Virginia Appellate News & Analysis blog, offered this legal perspective on Virginia’s redistricting debate. — JAB)

I continue to believe that the impetus for this new filing was a recognition by the plaintiffs’ lawyers that the judge’s original order last month contained everything they wanted except specificity. (I’m reading between the lines here, as I have no inside knowledge and have had no contact with any of the lawyers in the case. I’m also inferring and therefore assuming that the lawyers for the plaintiffs in the two cases are the same, but I can’t be certain of that yet.) They could have gone back to the judge and asked for an amended injunction order in the original lawsuit, but that foreseeably would have snagged them in a procedural issue related to the appeal to the Supreme Court.

The cleaner approach would be to get a new set of plaintiffs and file a new lawsuit, ensuring that the matter fell into the fertile soil of a court that had already ruled their way, albeit imperfectly. And as we’ve seen, that’s what they did. They filed the new suit on Wednesday and managed to get a lightning-fast hearing that convened yesterday at noon. From what I can see, that was some very effective lawyering.

I believe that this time, the lawyers — assuredly the plaintiffs’ lawyers — prepared a carefully worded order and simply handed it up to the judge at the close of the hearing. It contains language that distinguishes this suit from the previous one on the simple ground that the parties are different, so they aren’t stuck with proceedings in the original lawsuit.

This approach has at least the potential for a multiplicity of lawsuits on the same issues, as long as you can keep going up with new parties. I understand that that’s happened already with two other members of Congress, though they filed in Richmond where there’s no certainty about which judge you’ll draw.

I mentioned last evening the absence of any language about an injunction bond. I was able to check the statute just now, and it does still require the moving party to file a bond before an injunction takes effect. There’s escape-clause language in there that allows a judge to determine that it would be improper or unnecessary to require a given litigant to post a bond, but in my view, that requires an affirmative finding in the order, and this order doesn’t contain that.

The Attorney General has announced that he’ll appeal to the Supreme Court, and I expect that to arrive at Ninth and Franklin imminently; possibly today. The new order won’t suffer from the infirmity of the first one, so the justices are much more likely to confront the merits of the issue. The AG will ask for a hyper-expedited schedule, given the timing of the referendum and the coming primary elections; the plaintiffs would probably be content to slow-walk this, because they’ve got what they want now.

Most folks will view this scene through the lens of partisan politics. I’m a politically homeless person — too conservative for the Ds and too liberal for the Rs — so my primary interest in this is the legal aspect, not the political. I’m content to leave the political rasslin’ to others.