For Want of a Plaintiff

by Jim McCarthy

On June 6, 2022, one hundred or more Virginians breathed a sigh of relief that they would not be required to campaign for the House of Delegates in November 2022. A panel of federal judges dismissed a lawsuit challenging the 2021 delegate elections because the voting districts were malapportioned, i.e., the results of the 2010 census were still in play defining the populations of the 100 seats.

Since the 14th century, we have been instructed on the crucial nature of the kingdom that was lost due to the want of a nail. A more contemporary moral is related to the significance of “one person, one vote.” The panel found that the plaintiff failed to demonstrate standing to sue because he had not suffered an injury in fact within the district where he voted as required by the Constitution for a case or controversy.

Reviewing the commonwealth’s population data from the 2010 and 2020 censuses, the panel’s analysis concluded that the plaintiff’s vote in the 2021 election was cast in a district that, in fact, had fewer residents than the “ideal district.” Census figures from 2010 indicated the “ideal district” was 80,000. When the new maps were drawn by the Virginia Supreme Court subsequent to the election, the ideal district was pegged at 86,314. The plaintiff’s district prior to the redistricting was numbered at 79,611 and at 85,344 post redistricting. The chart below outlines the analysis:

The panel found that the plaintiff’s district at both points in time contained less than the ideal, meaning, in the panel’s opinion, that his vote actually had greater weight than that compared to the ideal. Thus, the judges concluded the plaintiff had suffered no injury. In malapportionment challenges, the decision noted those voters are, in fact, injured only when their vote is diluted due to residence in districts where the population exceeds the ideal and results in underrepresentation.

However, the judges also observed that the plaintiff’s allegation concerning the “maximum variance test that looks to dismiss other than his own may speak to the merits of his claim….”

That proposition is vivid in the 2021 election data where the most populous district – 130,192 – was virtually two times that of the least populous district at 67,404 and evidenced a difference of 50,192 in population comparing the most populated district with the ideal of 80,000. This confirmed that a significant number of votes were diluted, i.e., underrepresented, in at least one district. Given the breadth of the disparity gap between the least populated and most populated districts, it is likely across 100 districts that a cohort of delegate districts were overpopulated aggregating an even larger number of voters who, as a matter of fact, suffered injury due to underrepresentation.

Precedents established by SCOTUS have held that one person, one vote means “the weight and worth of the citizens’ votes as nearly as is practicable must be the same (Wesberry v. Sanders, 1964). Also, Reynolds v. Simms (1964) ruled that “if a state should provide that the votes of citizens in one part of the state should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the state, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted.”

Now for the rest of the story. A subsequent lawsuit has been filed by a new plaintiff who, at the time of the 2021 election, resided in an overpopulated district. According to the Virginia Mercury (June 9, 2022), this plaintiff asserts that there are “no facts actually in dispute,” urging that the court could reach an expedited conclusion sufficient in time to the November 8, 2022 election to order a rerun. An affirmative decision, it should be noted, not only corrects the malapportionment factor in the 2021 election but also remediates the delay in delivering the 2020 census data as well as the partisan stalemate which hobbled conclusion of the work of the Virginia Redistricting Commission.

Having a proper nail in place, it may be that one person-one vote is to be vitiated by a single plaintiff demonstrating an injury in fact in the battle to preserve the kingdom.

Jim McCarthy is a former New York attorney who now lives in Virginia.