Virginia is on track to hold an unconstitutional, illegal election this November 2. The Governor knows it. The Lieutenant Governor knows it. The Attorney General knows it; indeed, he is in court fighting my effort as the lawyer for the defendants in Goldman v Northam, et al, which is a federal action against the Governor and the Virginia Board of Elections. (The case is number 3:21 – cv – 00420 and all the documents can be found in the federal court PACER system, free to all Virginians).
The upcoming November elections for the House of Delegates are flat-out unconstitutional. The constitutionality was decided in a previous federal case in Virginia (Cosner v. Dalton, et al, 52 F. Supp. 350 (E.D. Va. 1981). The defendants were John Dalton, then Governor of Virginia, and the top officers of the of Elections. In Cosner, the federal court merely applied the law as first articulated in the seminal case of Reynolds v Simms (377 U.S. 533). In 1964, the United States Supreme Court had declared the equal protection clause of the 14th applicable to the apportionment of the districts in state legislatures.
“Simply stated, an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with voters of citizens living in other parts of the state.” Reynolds at 568.
In the ensuing decades, Attorneys General of Virginia and their counterparts in other states have been in federal courts around the country trying to define the term “in a substantial fashion” as a statistical marker for legal purposes. Legendary Virginian Henry Howell, the leading anti-Byrd Democrat at the statewide election level, became the first in Virginia to put the Reynold’s decision to a constitutional test in the case of Mahan v Howell, 410 U.S. 315 (1973).
The new Virginia Constitution had become operative a few weeks prior to the decision. The Virginia Constitution then, as now, requires that the state adopt new legislative district lines, known as a reapportionment, in the year after the annual U.S. Census. Thus 1971, the same here in 2021, is considered a reapportionment year under Article II, Section 6 of the Constitution of Virginia.
The Constitution therefore expects, as the Virginia Redistricting Commission has said, that the regularly scheduled general election for all the seats in the House of Delegates in a reapportionment year will be contested in the new districts drawn pursuant to the new census. Every Attorney General of Virginia, be he or she a Democrat or a Republican, has agreed with this constitutional reading — until Attorney General Mark Herring. It is shocking really.
In Mahan, the former Lieutenant Governor sued, claiming the 1971 reapportionment plan, enacted into law defining the boundaries of each House and Senate district, had unconstitutional anomalies. Mahan established two basic principles for Virginia redistricting. The first remains the same today: to wit, state leaders must make a “good faith” effort to make all the newly drawn legislative districts as equal in population as is practical. The second principle however has undergone more refinement: to wit, Mahan suggests a roughly 16.4% population deviation (between the least populated legislative district in the House (or Senate as the case might be) and the most populated district was likely the constitutional limit for statistical differences.
Today the bright line is roughly a 10% deviation between the least and most populated districts as discussed most recently in Harris v Arizona Independent Redistricting Commission, 136 S. Ct. 1301 (2016). In that case, the court reviewed the jurisprudence since Reynolds and Mahan. It determined that given “the inherent difficulty in measuring and comparing factors that may legitimately account for small deviations from strict mathematical equality, we believe that attacks (meaning lawsuits) on deviations under 10% will succeed only rarely, in unusual cases.” Harris, at 1307. This had basically been the law since the Supreme Court decided White v Register, 412 U.S. 755, about 5 months after Mahan. All of this is well known to Mr. Herring and his staff.
Thus, the Election Integrity problem with the 2021 House of Delegates election this November 2, 2021. State leaders without any court permission are holding an election under unconstitutional districts for the purposes of getting their incumbent friends and cronies a two-year term. But as I will now show, at best they should get a one-year term.
For the first time in Virginia history, the general election for the House of Delegates will be conducted under the old, existing districts, drawn pursuant to an obsolete 2010 census. There is no authority to hold an election under such old districts in a reapportionment year in the Constitution of Virginia. None. To repeat: It has never been done in Virginia history under the current Constitution, nor any old one from what I can tell.
The closest analogy is the November 3, 1981, general election for the House of Delegates. The General Assembly had pushed the primary elections that year to September, since the Reynold’s case had now made redistricting a huge legal battle. The statewide primary had likewise been moved to either late August or September in 1991, 2001, and 2011. But not here in 2021! The reasons will be clear soon enough.
Thus, on August 25th, 1981, after the expected constitutional challenge to the districts drawn by the General Assembly, the federal court in Cosner declared the State Legislature’s redistricting map drawing to be unconstitutional. The population deviations exceeded, without justification, those constitutionally permissible not merely in White but even the more lenient Mahan standard. The Governor and the Virginia Board of Elections didn’t protest the findings: the new 1980 census data spoke for itself when laid atop the redistricting maps.
This created an Election Integrity dilemma of sizeable proportions: the public was being asked to cast ballots in an election that violated the equal protection rights, along with the Voting Rights Act rights, of millions of Virginia citizens. Some plaintiffs in Cosner suggested the Court use the old 1971 drawn districts since at least they had been constitutional at the time. The Cosner decision strongly rejected that suggestion, stating in clear language “(a)llowing the election to proceed under the 1971 (reapportionment) act would…effect great harm to the principle of one-person, one vote.” Cosner at page 363.
What then to do? Cosner decided to let the 1981 election go ahead under the unconstitutional 1981 new districts saying, “using an unconstitutional apportionment plan is permissible, when, as here, necessary election machinery is already in progress for an election rapidly approaching.”(Cosner at page 364.)
However, Cosner then said, in a rationale subsequently cited favorably by the United States Court of Appeals for the Fourth Circuit (Virginia is part of it) and specifically by the Chief Judge of that Court, Richmonder Roger Gregory, that “Virginia citizens are entitled to vote as soon as possible for their representatives under a constitutional apportionment plan.” Therefore, the Court ruled the “terms of members of the House of Delegates elected in 1981 (would be limited) to one year,” further ordering the Governor and state election officials, along with the Attorney General, to take care to “conduct a new election in 1982 to the House of Delegates” under a constitutional apportionment plan.
The new Democratic Governor Chuck Robb, the new Democratic Attorney General Baliles, and the Democratic General Assembly did as they were ordered. A special election for all the 100 seats to the House of Delegates was held in November of 1982, and then another again in 1983 during the regularly scheduled general election. This put the House back onto the current formula of two-year terms contested in every odd year.
Neither Robb, nor Baliles, nor the Democratic General Assembly tried to defy the Cosner decision. They defended it. Given their oaths of office, they adhered to the federal constitution, admittedly perhaps a new concept to Virginia politicians years ago. But supposedly no longer.
Cosner was settled law. But suddenly, 40 years later, Mark Herring is no longer interested in Election Integrity. For the past 4 years, Herring has bashed the former President and Republicans for failing to enforce the law. He has accused them of any number of violations of election integrity.
As the former Chairman of the State Democratic Party of Virginia, I have been appalled many times at the failure of the former President to appreciate both the law and the spirit of the U.S. Constitution. I want my state attorney general to hold a President accountable when necessary. Governor Northam has likewise bashed the former President for constitutional transgressions. Again, I want my Governor to hold the White House accountable for violating constitutional principles.
But as a commentator, I need to have the courage of my own principles, to stand up to another serious problem in American political life: the double standard demanded by politicians of both parties, the law of a free pass for them, a far harsher one for the rest of us.
Thus, I brought my case, Goldman v Northam, et al, in federal court at the start of the summer.
The Cosner case made clear what any first grader would know: in a state like Virginia, with significant population growth in some regions and population losses in others, it would be unconstitutional in the extreme to conduct the 2021 House of Delegates election using the old districts drawn in 2011 pursuant to an obsolete census. Cosner pointed that out. It further says that a federal court can authorize using unconstitutional districts if this is the only practical solution provided the state moves as quickly as possible to fix the equal protection violation.
Moreover, Cosner was made part of the Constitution of Virginia in 2020 by the people. In the Referendum last November creating the Virginia Redistricting Commission. The voters added the following language to the Constitution of Virginia, as instruction to Mr. Herring, Mr. Northam and the State Board of Elections, along with their successors in office, as to responsibilities in a reapportionment year: to wit, an “(e)lectoral district shall be drawn in accordance with … the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and provisions of the Voting Rights Act of 1965, as amended, and judicial decisions interpreting such laws.” (Emphasis added).
Cosner, as indicated above, was decided under the Equal Protection Clause. Therefore, Herring, as the state’s chief legal officer, has a duty to adhere to the decision. But the available evidence strongly suggests he has purposely avoided telling the General Assembly that they were holding an illegal primary and illegal general election under the Cosner rationale.
Furthermore, Democrats last year promised that their new “Virginia Voting Rights Act” would ensure the Attorney General would have the power to correct voting rights violations in a Virginia court. The law says that whenever “the Attorney General has reasonable cause to believe that a violation of an election law has occurred and that the rights of any voter or group has been affected by such violation, the Attorney General may commence a civil action in the appropriate circuit court for appropriate relief.” Va. Code Section 24.2 104.1.
This law went into effect on September 1 of this year. On August 3 of this year, the Attorney General attacked my lawsuit, claiming that he had no way of knowing whether the equal protection clause had been violated because his lawyers didn’t have access to the 2020 U.S. Census data to make such a determination. As I show in my lawsuit, any first grader has known for several years, based on data from the U.S. Census Bureau, as analyzed by any number of Virginia groups, that the old legislative district lines would be unconstitutional if used in 2021.
But in any case: The Attorney General had the ability to get the data he claimed to have needed by August 12th at the earliest, and surely by August 26th, when the data got posted on the Virginia Redistricting Commission’s website. (I alerted his office to their ability to get this data before August 26th as I had already been sent it).
I am writing this column on September 19th. Therefore, it is not possible for the Attorney General, the State Board of Elections, or the Governor to claim they don’t have the census data. It takes maybe a minute to realize we conducted both the June primaries and will conduct the upcoming November elections for the House of Delegates under an unconstitutional House district plan. The population deviation between the least populated House District (currently HD # 3) and the most populated House District (currently HD # 87) is 82%!!! This is roughly 800% more than the permissible Arizona standard! By my calculation, well over 80% of Virginians will be voting this November for candidates running in House districts which substantially violate the state and federal constitutions. A full 30 of the 100 House districts have populations 25% or greater than the least populated district.
State leaders have sought no court approval as seemingly required by Cosner when the state leaders know or should know, they intend to conduct an election under an unconstitutional apportionment plan based on the 2020 Census. But the leaders of the General Assembly were hoping no one would notice, that all the incumbents could get a two-year term since, I presume, they figured a court had to order the one-year term prior to the November vote. I know they have been discouraging people to join my case.
Cosner did leave the term limit question open in this regard: the opinion had been issued prior to the November 1981 general election. Therefore, the candidates and the voters were on notice as to the term limitation and the new election next year.
This is currently not the case here in 2021. The Attorney General is in federal court, having made procedural objections to my lawsuit, not substantive ones. Or put another way: he has yet to stay whether he thinks the elections this November are unconstitutional in terms of the state conducting them under an unconstitutional districting plan. I expect him to make more procedural objections later this month as opposed to addressing the constitutional issues.
It seems reasonable to conclude the Speaker of the House believes Herring would try to get her members the two years. The powerful incumbents running the General Assembly in each party don’t want to run in a June 2022 primary in new districts. This would be required under a Cosner solution. Thus, incumbent protection, putting the private interests of the incumbents ahead of the public interest, is the main motivating factor in their keeping quiet.
But you say: Have not Democrats been claiming they can be trusted to protect voting rights?
That is what they say. But their willingness to force citizens to wait until the 2024 General Assembly to seat a constitutionally apportioned House of Delegates is totally inconsistent with their rhetoric. Indeed, never in Virginia, indeed American history, has any citizen had to wait until four years after the new census to have a constitutionally apportioned General Assembly at work in their state. Never.
In the spirit of voters knowing what was at stake in the November election, I did offer to sit down with the lawyers for the Defendants to settle the matter. But they refused. They gave a vague reason which I am not allowed to disclose under Federal Rule 408.
But its vagueness also means I can speculate as to the reason. In my view, as often happens in litigation, you learn more facts, you learn more law. and you get a better grasp of the issues at hand.
The facts point to Mr. Herring having purposely avoided giving his formal opinion on the constitutionality of the elections since May. The facts likewise point to the Governor, the State Board of Elections and the Commissioner of Elections purposely never requesting a formal opinion. Given Cosner, it strains credulity to believe they didn’t want his advice. But the law does allow him to give it to them informally. The law doesn’t prevent him from volunteering his opinion to the public, which he does regularly on many matters as an active statewide candidate this year.
The facts now are clear on this point: unlike previous years, the General Assembly did not push the statewide primaries back until late August or early September in a reapportionment year. They simply assumed the U.S. Census Bureau would not provide the data even though President Biden was taking over for former President Donald Trump. State leaders simply decided to use COVID-19 as an excuse to hold the primary in June under the old districts. Therefore, even if the Virginia Redistricting Commission could have somehow drafted new districts — Oklahoma did it using ACS census bureau data — it would not matter as the primaries had already occurred.
Accordingly, the Attorney General had no interest in meeting with me to discuss declaring the general election unconstitutional. Indeed, this might have triggered a need for him to bring a civil action under the new Virginia Voting Rights Act.
But most importantly, I think the AG lawyers realized something else: I had indicated a concern that the waiting until November of 2022 might not actually satisfy the Cosner rationale that the constitutional violations be corrected as soon as possible.
Back in 1981, we didn’t have vote by mail the way we do know. Accordingly, the Court didn’t have the option of ordering a special election for the House of Delegates in January of 1983, in time to seat a constitutionally apportioned General Assembly. Requiring citizens to vote in person shortly after New Year’s would seeming cause a huge drop in turnout as compared to the normative levels in a November general election. This, in turn, could lead citizens to question the legitimacy of such elections, and thus the composition of the General Assembly.
In the Cosner world, a November 1982 election, with candidates picked where need be in a June primary, was the optimum. I do believe that.
But the more I think about the differences 40 years later, the more it seems a January 2022 election should at least be discussed, since it would fix the constitutional problems as early as possible. Moreover, there is also the practical mathematical side. The least populated House district being contested right now in November has roughly 71,000 residents. In my City of Richmond, there is a majority minority district with 93,000 residents (House District # 71). This is greater than 30% deviation, totally unconstitutional. Deviations exceeding 10% are likely in many other such districts created under the Voting Rights Act. The same for certain districts in Northern Virginia with protected minorities.
Hopefully, I don’t have to spell out the facts of life to you. In effect, if you wait until November of next year to hold the special election for the House of Delegates, this means a constitutionally apportioned General Assembly, with voters in majority minority districts getting their full equal protection voting rights, will be delayed one full year.
Or put another way: Delegates from far less populated districts in the Southwest with a far different demographic constituency than this Richmond district, will get an extra year of representation while citizens in Richmond lose their rights for one full year. Can this be justified under the Voting Rights Act in federal court? Can it be justified in the court of public opinion?
Thus, in closing, I hope you all can now see why many minority citizens might see Herring’s position as devaluing their rights: to wit, he wants to wait until 2024 to give minority citizens their full voting rights in the House of Delegates as declared by Reynolds, while giving two extra years of unconstitutional representation to certain residents of Southwestern Virginia.
I say might because I am still hopeful that Herring’s view of the constitution and equal protection for minority voters, indeed all voters, will not prevail. In all honesty, I am not sure his office has fully realized the practical effects of his current position. There is no shame in that. I didn’t fully appreciate it either when first filing the case. I was thinking it would be amazing to get the state to accept a Cosner solution, since no citizen in any state, standing alone in courtroom, had ever forced a state to conduct such a special election. There were dozens of Plaintiffs in Cosner, many of them historic figures, all pushing for a 1982 election. They had many powerful groups behind them.
So, I figured a Cosner win would be a great victory for the people, getting them their rights a full year ahead of what Herring and his clients wanted.
Yet it has been dawning on me that a January 2022 election, despite all the practical flaws, can’t be simply swept under the rug. It needs to be discussed. The Equal Protection Clause is one thing. But the Voting Rights Act is another. As a white person, I can’t raise the Voting Rights Act. I am limited to the Equal Protection Clause. A Cosner remedy may be enough for that.
But is it enough for those protected from constitutional damage by the Voting Rights Act?
I can’t answer that question. But I can answer this one: right now, the Governor, the Attorney General, the Lieutenant Governor, the General Assembly, the State Board of Elections, all controlled by Democrats, is conducting an unconstitutional election, hoping to avoid a 2022 special election, wanting only a 2023 regularly scheduled election. This will get their cronies a two-year term when the Cosner case, now part of the State Constitution, says this is illegal.
I see this as an Election Integrity Issue. Why? Because any action of the government leading to a loss of public confidence in our election process hurts our system. Isn’t this the complaint Herring and Northam have made against Trump? Since I want Trump to abide by the constitution, can I ask anything less of Herring and Northam? No.
Right now, my government knows it is conducting an election using unconstitutional districts without any court authorization. They are simply following a “might makes right” approach to political power. This is not in the best interest of my state. It is that simple.
That is not what I believe in. Can I win my suit? It is one man against both political establishments right now, I have received no help from any of the newspaper editorial boards, any group claiming to be fighters for voting rights, I must pay for everything myself and put in the time which has a value also. Fortunately, some good friends have helped me, and they are gearing up to do more. They are good allies. But between us, we are only ordinary citizens going up against the governmental bureaucratic Goliath.
I think Mr. Herring is simply wrong to fight for two-year terms and an election in 2023. This violates not just my rights, but the rights of every minority citizen in Virginia as I see it. He should know better every Democrat should know better.
Democrats were fine with Cosner in 1981 and 1982 and 1983. Republicans too. We need Election Integrity in 2021. The people need to know the facts about the 2021 House elections. Their constitutional rights must come before the political interests of the General Assembly leaders.
Paul Goldman is an attorney residing in Richmond.