Washington Post: "Va. Court Freezes Ruling on Districts."
May 29, 2002
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The Virginia Supreme Court issued an order today that puts on hold a lower court ruling that invalidated a Republican-drawn redistricting plan and raised the possibility of special legislative elections this year. The court also agreed to review the ruling, but not on the expedited basis sought by political leaders.
State Republicans hailed the high court's actions as an early, if not terribly conclusive, sign that they are on secure legal footing in defending the redistricting plan crafted in 2001 by the General Assembly's GOP majority. Democrats described the court actions as little more than a momentary setback.
Without addressing the merits of either side's case, the court indicated it was prepared to undertake a full-scale review of the March 11 ruling by Salem Circuit Court Judge Richard C. Pattisall that invalidated the 2001 reapportionment. The justices issued one-page orders staying Pattisall's ruling and granting an appeal.
Pattisall's ruling, coming less than three months after new statewide leaders had taken office, shocked the normally staid world of Virginia politics and dramatically heightened tensions between Mark R. Warner, the new Democratic governor, and Jerry W. Kilgore, the new Republican attorney general.
Pattisall said in his ruling that Republicans had engaged in unconstitutional "racial gerrymandering" -- packing African Americans into certain political districts to confine their voting strength to the smallest possible number of districts. Pattisall ordered new elections to be held as soon as a fairer redistricting plan could be drawn.
Overnight, both major parties geared up for a legal struggle and new elections, perhaps as soon as this fall. In late March, the political hostilities took a bizarre turn after state police began investigating state GOP operatives for listening in on Democratic conference calls about the redistricting case.
The inquiry led to the indictment of the GOP's executive director; those state charges have since been withdrawn but federal authorities have joined the case and could seek new indictments.
Today's action by the court has the practical effect of declaring a timeout in the redistricting case, giving both sides plenty of time to prepare for oral arguments in Richmond this fall. The chances of special legislative elections, which were dimming already, are now nil, both sides said.
Kilgore told reporters at an impromptu news conference that he was "convinced that the speaker [of the House of Delegates] and the House majority leader are very happy today and pleased with the court's decision on all three points: taking the case, staying the decision of Judge Pattisall and refusing to expedite this case."
Kilgore had concurred with Warner in asking for an expedited appeal, though the attorney general said today that such fast-track appeals are rare in Virginia.
Ronald A. Klain, a Washington-based lawyer who represents Democrats in the redistricting case, said: "I remain confident that when the litigation is over, those districts will be invalidated. They are illegal."
Warner issued a statement reiterating his belief "that this matter must be resolved as quickly as possible."
"Protecting the voting rights of all Virginians is a matter of critical importance," Warner said. "Obviously, I would have preferred that the Supreme Court of Virginia would have heard this case sooner."
Although both sides can take something of a summer breather in the redistricting fight, the court case could stir partisan tensions later in the year, when there will be major ballot questions on raising taxes in Virginia's biggest population centers, Northern Virginia and Hampton Roads. Grass-roots organizations in both parties are beginning to stake out competing positions on those proposed tax increases.
Like the eavesdropping scandal, which is also unresolved, the redistricting case could be a continuing irritant to Warner in his bid to forge bipartisan agreements on big issues facing state government, according to Democratic and Republican leaders alike.
Kilgore said he believed the Supreme Court's agreement to hear the appeal underscored the long-term implications of the redistricting case.
"This is a huge record that they're going to have to review," Kilgore said. "It's a very important case, and I think they wanted to take their time with this case."
If it doesn�t end soon, Virginia�s first major political scandal in a decade � over alleged eavesdropping on a telephone conversation about redistricting -- could destroy already brittle relations between Democratic Gov. Mark Warner and the Republican-controlled General Assembly.
The scandal erupted early last month when Democrats accused Ed Matricardi, the executive director of the state Republican Party, of secretly monitoring two conference calls about a Democratic lawsuit challenging Virginia�s newly drawn political boundaries.
The Richmond City commonwealth�s attorney -- a Democrat -- immediately began investigating the case and a grand jury soon indicted Matricardi on wiretapping charges.
But just days later, Democrats said the number of a cell phone used by the chief of staff to Republican House Speaker S. Vance Wilkins Jr., was on a list of participants in one of the conference calls
And one day after that, Republican House Majority Leader H. Morgan Griffith alerted Republican Attorney General Jerry Kilgore that one of his aides might �know something� relevant to the case.
Wilkins and Griffith suspended their aides, but this failed to still Democratic howls. Democratic State Party Chairman Larry Framme has compared the scandal to Watergate, a botched Republican break-in of the Democratic Party�s national headquarters in 1972. that ultimately led Republican President Richard Nixon to resign.
"This is a godsend for the Democratic caucus in the House. They have been downtrodden and emasculated (by the Republican majority), and they will use this endlessly,� says Larry Sabato, a well-known University of Virginia political scientist.
House Minority Leader Frank Hall of Richmond has led the rhetorical assault on the embarrassed Republicans, who in turn have condemned Matricardi�s actions. Matricardi says he was invited onto the conference call, so what he did was not illegal.
Warner, the first Democrat elected governor of Virginia in more than a decade, has avoided leaping into the fray. The Republicans control both houses of the General Assembly, and without their support, he could leave office with little to show. So after condemning eavesdropping as �wrong,� Warner has kept quiet.
�Warner�s been smart about this,� Sabato says. �He has not added much of anything to the rhetorical excess �He understands when a political opponent commits suicide, you stand aside and let him.�
Analysts and politicians on both sides of the aisle say the longer the uproar lasts, the more bitter next winter�s 45-day session of the Virginia legislature could become, and the harder it could be for Warner to get anything done. However, most Republicans believe the controversy will peter out in a month or two, and say it should not affect next year�s session.
�I don�t see this causing a lot of tension between the two parties,� says Republican state Sen. Bill Bolling of Hanover County. �Clearly the Democrats will try to reap some advantage from it, but that�s expected.�
But two wildcards remain � legal action or an extended investigation. Should the state Supreme Court uphold a lower court ruling that the GOP mishandled redistricting, then Virginia could have an unscheduled legislative election this fall. Sabato says that would surely keep the scandal alive, and poison the legislative atmosphere next year.
The second possibility is more likely. Federal officials said Wednesday (5/9) that U.S. prosecutors and the FBI would assist in the eavesdropping case. Everyone involved says the glacial pace of most federal investigations could keep the political pot boiling for the foreseeable future, which in turn could paralyze any meaningful action on Warner�s agenda for the Old Dominion.
Judge Pattisall's decision to declare the Virginia legislative and senate districts unconstitutional exposes the brooding tensions-if not contradictions-within voting rights law.
Redistricting and voting rights law have become such a thicket of regulations and constraints that virtually no districting scheme is likely to avoid legal challenge. States must abide by the Voting Rights Act requirements that districts be drawn to create reasonable opportunities for minority representation. They must not be too zealous in seeking to create such opportunities, however, because doing so will run afoul of the 14th Amendment. While there are no federal constitutional requirements concerning compactness and contiguity, there are state-level ones that allow districting plans to be challenged in state courts.
The current controversy in Virginia is based on a strange admixture of concerns about minority representation and the preservation of communities of interest. Until now, it was often necessary to create districts that were comprised of close to 60% minority voters to ensure that they would have a real chance of electing a representative of their choice. Now, it is argued, it is unnecessary to pack that many minority voters into a district because our minority legislators claim that they can draw support across racial lines.
At first this sounds wonderful. It suggests that the Voting Rights Act actually has broken down some of the racial barriers it was designed to remove. On the other hand, it might mean nothing more than that our minority incumbents are able to draw support across racial lines because of their strong records of constituency service and legislative initiatives.
This raises a disturbing question: While Henry Marsh or Bobby Scott or Louise Lucas might be able to win in a district that is comprised of only, say, 48% or 50% black voters, would a rookie minority candidate be able to do so should any of our incumbent legislators retire?
Confident minority rights advocates might argue that this is a risk we must take to advance the long run interests of minority voters. But, in the short run, it risks leaving minority voters without a voice should any of our minority incumbents retire. Would the Voting Rights Act conscience such a risk?
With regard to district shape and community of interest, it is pretty obvious several of the house and senate districts in the Tidewater area seem to have been drawn with the interests of boaters as well as voters in mind. But, one wonders why the current challenge to the district lines focused only on the eastern part of the state. Creigh Deeds' 25th senate district starts north of Charlottesville and follows I-64 to the West Virginia border. It splits Rockbridge County in half and neatly wraps around Lexington. Anyone familiar with Afton Mountain will tell you that this district is "contiguous" only if one has 24/7 access to fog lights and a snow plow. The challenge to the districting plan made no mention of this one.
Thus, there is a bitter irony to the development of redistricting law and the prevailing interpretation of the 14th Amendment. The importance of district shape depends on who benefits from the district. We can draw bizarre districts that cross mountains, but crossing water is a problem. We can draw districts to preserve Irish or Italian or Polish communities of interest. We can draw them to preserve urban or rural communities of interest. But if we draw them to accommodate black or Hispanic voters, controversy erupts. Obviously, there is something wrong with the prevailing interpretation of the 14th Amendment if it allows a bizarre district to be drawn to protect the Irish when a similar one that is one drawn to protect black voters is constitutionally suspect
One way to resolve (or, at least, defuse) the decennial redistricting controversy would be to employ multimember districts once again. Virginia used them just a couple of decades ago and states such as Georgia and North Carolina continue to use them for their state legislative elections.
Like any other political arrangement, multimember districts have their fair share of shortcomings and are criticized mainly by folks who have a vested interest in the status quo. But, the status quo currently entails bizarre districts, racially charged political wrangling and expensive litigation. If we were to draw fewer legislative districts that were represented by 3 or 4 delegates or 2 or 3 senators, there would be correspondingly fewer district borders to fight about. If other states can do this, why can't Virginia? If it makes politics less partisan, more peaceful and makes the districting process less controversial, why not give it a try?
Gov. Mark R. Warner (D) applauded a Virginia judge today for overturning the state's Republican-drawn redistricting plan, but said his administration will appeal that ruling to let the state Supreme Court settle the legal and political "swirl" surrounding it.
Warner said he would retain two outside lawyers -- one to handle the appeal on behalf of the state Board of Elections, and another to represent Warner's office in its redistricting dispute with the state's Republican attorney general, who supports the plan.
Warner's hiring of a special counsel for the elections board, as well as a nationally recognized expert on voting rights law to be his own lawyer, was the governor's most emphatic response to Attorney General Jerry W. Kilgore (R), who announced plans to appeal the ruling shortly after it was issued last Monday.
Salem Circuit Court Judge Richard C. Pattisall said the Republican-dominated General Assembly engaged in unconstitutional "racial gerrymandering" when it crafted new lines for legislative districts after the 2000 Census. Pattisall, a former Democratic Party official in the Roanoke area, said the 2001 redistricting plan packed African Americans into the fewest possible number of voting districts, especially in the Tidewater region of southeastern Virginia.
Pattisall ordered all new elections this year for the 100-member House of Delegates. The House would have been on the ballot next in November 2003, along with the 40-member state Senate. Any new redistricting would have to be signed by Warner and approved by the U.S. Justice Department before elections were held.
Warner said that he agreed with Pattisall but that he was also "aware of all the swirl around the case," including concerns about a lone judge at the state level invalidating an entire redistricting plan.
"The stakes in this matter are high," Warner said at a state Capitol news conference. "Consequently, I believe the decision needs to be validated . . . so that we can remove this cloud hanging over our electoral process."
Kilgore, the GOP's top state official and a prospective contender for governor in 2005, announced that he was appealing Pattisall's ruling without consulting Warner, touching off a political spat with the Democratic governor that raises complex legal issues about the role of their respective offices in state government.
In a statement issued late today, Kilgore said it was appropriate for Warner to hire his own lawyer, largely because the two officials held opposing views about appealing Pattisall's ruling.
Kilgore said that even talking to Warner about the case "could have created a conflict for this office as it continues to defend a law duly passed by the people's representatives and signed" by former governor James S. Gilmore III (R), Warner's predecessor.
Kilgore also disputed the need for appointing outside counsel to the elections board, saying he had kept the board's top official, Cameron P. Quinn, abreast of developments and "all of our conversations have clearly indicated that she wishes to pursue an appeal.
"Governor Warner's mention of special counsel for her is unnecessary," Kilgore said in the statement.
In hiring two lawyers -- one to represent his interests, the other to help see the appeal through -- Warner sought to balance the competing legal and political interests of his executive office and his Democratic Party base, aides to the governor said. He also is hoping to bolster his image as a decisive leader coming off an unsatisfactory General Assembly session and a challenge by the attorney general.
At the news conference, Warner chided Kilgore for failing to meet with him as scheduled last week and attempted to portray the attorney general as little more than a partisan who "wishes to continue to represent the interests of Republican legislators."
Although state law gives Kilgore discretion in picking his legal fights, Warner contended that "the governor directs the legal affairs of the commonwealth." Warner said he was hiring Pamela S. Karlan, a Stanford University scholar who was on the University of Virginia Law School faculty for 10 years until 1998, to represent him in the redistricting case. Karlan will donate her services, said Warner, who has not yet named the special counsel for the elections board.
"I believe the case will be affirmed," Warner said, "and I believe that there will be a new redistricting plan and new elections held that will more fairly represent all Virginians."
He added, "The attorney general and I clearly disagree on this matter."
Democrats won their second important judicial victory over racial redistricting when a state judge held this week that Virginia's legislative map was unconstitutional because it packed black voters into a few districts to diminish their political influence.
The judge, Richard C. Pattisall of Circuit Court in Salem, Va., said the legislature placed more black voters into 17 districts "than are necessary or reasonable to give the minority voters a reasonable opportunity to elect a candidate of its choice as mandated by Section 5 of the Voting Rights Act." Judge Pattisall ordered the legislature to draw a new map in time for a special election in November.
His decision on Monday is all but certain to be appealed to Virginia's Supreme Court, but Democrats who brought the suit said the decision would be influential elsewhere, even though they framed their case under Virginia law rather than federal law. They pointed out that Judge Pattisall's conclusions paralleled those of a federal court that validated New Jersey's legislative map last summer against Republican attacks that it unconstitutionally diluted minority voting strength.
Ron Klain, a Washington lawyer who represented Democrats in the case, said the Virginia and New Jersey decisions were "bookends on an emerging new law about packing."
"In New Jersey the fact that the districts were not packed was successfully defended," Mr. Klain said. "Here, the fact that the districts were packed was successfully attacked."
Republicans sharply disagreed. John Morgan, a Republican redistricting specialist, said Judge Pattisall was a former Democratic county chairman, and called his ruling "partisan gibberish."
Tom Hoffler, in charge of redistricting for the Republican National Committee, dismissed the ruling as a "brand-new interpretation of the Voting Rights Act that he has found in the Virginia Constitution."
Jerry Kilgore, Virginia's attorney general and a Republican, said he was confident that the decision would be reversed on appeal. "The new legislative boundaries approved by the Virginia General Assembly," Mr. Kilgore said, "were not drawn with an effort to discriminate against anyone on the basis of race."
This lawsuit, like the redistricting plan approved in New Jersey, was part of a Democratic counterattack against Republican successes after the 1990 census. Republicans backed the creation of districts with majorities from racial minorities. Democrats contended that the effort had stripped so many reliable black voters out of districts that had sent white Democrats to Congress and state legislatures that Republicans made a substantial gain.
In New Jersey, Democrats backed a plan that reduced the minority voter percentages in many districts represented by blacks and Hispanics. Those minority lawmakers backed the plan, which helped Democrats take over the State Assembly, elect an Hispanic speaker, Albio Sires, and see the total number of minorities in the legislature grow to 24, from 20.
The Virginia redistricting was comparably successful, but for the Republicans. While minority membership held steady at 10, Republicans went from 47 to 64 members of the 100-seat House of delegates, even though their party was losing the governorship to a Democrat, Mark Warner.
Republicans chose not to appeal the New Jersey decision to the Supreme Court. Exactly who will appeal the Virginia decision is not clear. Mr. Kilgore and Governor Warner are arguing about whether the attorney general can appeal without the governor's agreement.
Several members of the legislature, including the speaker of the House of Delegates, were originally named as defendants, but they contended they were immune from service of legal papers. It is now murky as to whether they formally remain in the case.
Judge Pattisall also invalidated a number of districts because he held that they were not contiguous, saying the legislature reached across bodies of water to "grab" voters to give some districts the population they needed. The questions of compactness and contiguity are not issues likely to affect maps in other states, because the federal courts routinely accept weirdly shaped districts.
The racial issue, however, is different. John Hardin Young, special counsel to the Democratic National Committee for redistricting, said the decision had "broad application because the judge applied traditional redistricting criteria."
Mr. Young said Judge Pattisall found "that there was racial gerrymandering, and black votes were diluted by packing."
"The packing of minorities," Mr. Young said, "is a cynical effort to decrease the representation and influence of minority voters."
Virginia Gov. Mark R. Warner and Attorney General Jerry W. Kilgore agreed to meet face-to-face Thursday as aides to both men insisted that each has the upper hand in a feud over a judge's redistricting ruling.
Kilgore, a Republican, has said he plans to appeal the decision by Salem Circuit Court Judge Richard C. Pattisall, who ruled Monday that the political map drawn by Republicans last year discriminates against black voters and violates the Virginia Constitution. The judge called for new elections this year.
Warner, a Democrat who has praised Pattisall's ruling, has chided Kilgore for saying that he plans to appeal without first consulting him. Democrats expect Warner would not appeal the decision. If the ruling is not challenged successfully, the General Assembly's GOP majority would have to draw new districts.
In a brief letter sent Tuesday evening, Warner once again warned Kilgore not to act before their meeting. Aides to both men said they are scheduled to discuss the issue at 5 p.m. Thursday at the governor's Capitol office.
"We believe [Kilgore] has the right to appeal. We just don't believe he can appeal if we tell him not to," said Ellen Qualls, Warner's press secretary. "We firmly believe we have the authority as the chief executive of the commonwealth."
Aides to Kilgore take the opposite view. They cited the state Constitution and the Code of Virginia, which they said offer proof of the attorney general's right to appeal the redistricting case with or without the governor's approval.
Timothy Murtaugh, Kilgore's spokesman, said the attorney general gets unquestioned authority in legal matters from Article 5, Section 15, of the state Constitution and Section 2.2-507 of the Virginia code.
"This redistricting plan was approved by the General Assembly and signed into law by the governor," Murtaugh said. "When it falls under challenge, it is the attorney general's duty to defend it from challenge."
Pattisall's ruling upended the normally quiet post-session period, when lawmakers decompress from two months of nonstop politicking. Instead, the 100 members of the House of Delegates face the prospect of election-year fundraising and primary battles before a general election.
"I'm going to have to start getting my yard stick signs," Del. John A. "Jack" Rollison III (R-Prince William) said jokingly today.
But the ruling also set in motion a Warner-Kilgore clash. Emerging victorious is important for both men, said longtime observers of politics in Richmond.
Kilgore can solidify his position as the leading Republican in the state by becoming the champion of a legal challenge to Pattisall's ruling, they said. Kilgore, who has made no secret of his wish to run for governor in 2005, can also position himself as a defender of the institution of the attorney general's office.
For Warner, the judge's ruling offers a chance to exact political revenge on the Republican-led legislature, which stymied his attempts to pass voter referendums to benefit transportation and education during the last session. New elections would give Democrats another chance to chip away at the 64-seat GOP majority.
"What could be sweeter for Warner than to reduce the Republican majority and give himself a little more leverage?" asked Robert D. Holsworth, a political science professor at Virginia Commonwealth University. "They both have huge political interests at stake here."
Holsworth predicted that the case would find its way to the Virginia Supreme Court, whatever the outcome of the Warner-Kilgore brawl. Five of the justices on the court were appointed by Democrats, and two were appointed by a Republican.
"This has the potential of injecting politics into the Supreme Court in a way that would be virtually unprecedented in Virginia," Holsworth said.
Pamela Karlan, a professor of law at Stanford University who is advising Warner on the case, said power struggles between governors and attorneys general are common and usually decided by courts.
"One of the issues that the state Supreme Court would have to resolve is whether the governor really is the party in the case," Karlan said. "Or is the state really the party in interest?"
Warner aides referred to statements the governor made during the campaign in favor of developing a less partisan, more technical approach to drawing political maps. A few other states, including Iowa, have created non-partisan commissions to perform redistricting.
"The governor finds a non-partisan approach intriguing," Qualls said. "It is certainly worth looking at."
Virginia's Redistricting Case
State leaders continue to wrangle over a Circuit Court judge's decision to throw out the legislative redistricting plan adopted last year. Here is a summary:
To ensure that every individual's vote counts as much as everyone else's, state legislatures redraw their district boundaries after each national census so that the districts are roughly equal in population. The party in power draws the lines to enhance its election chances, while trying to meet constitutional requirements.
The 2001 Plan
Republicans, in control of the governorship and the General Assembly for the first time, redrew the boundaries for the 100 seats in the House of Delegates and the 40 seats in the state Senate. Many Democratic legislators were pushed into districts with other Democratic incumbents and chose to retire rather than engage in a primary fight.
Democrats filed a lawsuit alleging that the redistricting was flawed on several constitutional grounds. They said some districts were not contiguous and compact, while others were drawn for racial reasons that served no compelling state interest. Race can be a factor in drawing district boundaries if the goal is to enhance minority representation.
Impact in 2001
The Circuit Court judge who reviewed the lawsuit issued no orders concerning the 2001 House elections, and they proceeded on schedule in November. Republicans enhanced their House majority, taking 64 seats.
On Monday, Judge Richard C. Pattisall ordered the governor and the General Assembly to redraw the districts he said were constitutionally flawed. Almost all of the House and Senate districts reviewed by the judge are in southeastern Virginia. The U.S. Justice Department would have to review the results of a new redistricting. By the end of the year, the judge said, Virginia would have to hold new elections for the House. The 40 state senators are up for election in November 2003, the regularly scheduled date for General Assembly elections. The 100 House seats would be on the ballot yet again for that election.
Should the state appeal the judge's order or carry it out? The state's lawyer, Attorney General Jerry W. Kilgore, is a Republican. The state's leader, Gov. Mark R. Warner, is a Democrat. The attorney general, like many Republicans who say the boundaries were drawn fairly, wants to appeal. The governor says he should decide whether to appeal, and he has not said what he will do. Democrats generally support the judge's ruling.
In throwing out Virginia's redistricting scheme this week, Circuit Judge Richard Pattisall didn't mince words. The Republican state legislature, he wrote, created districts that "are neither contiguous nor compact," as the Virginia constitution demands. The General Assembly engaged in racial gerrymandering by removing African American voters "from their communities of interest" and packing them "into districts in which they have little, if any common interest." The result, an order for new elections to be held this year, is quite a jolt. But Judge Pattisall's suggestion that the basest sort of politics dominated the redistricting process hardly comes as a surprise.
Redistricting is a winner-take-all affair, in which the party in power draws the map so as to protect its own incumbents, force the other side's incumbents into retirement and maximize the voting power of those citizens most likely to support its candidates. In a ritual that repeats itself as surely as new census data trigger redistricting every 10 years, the aggrieved party responds by taking the whole thing to court -- alleging that a slew of legal requirements was violated.
It's easy to get huffy about the way the Republicans drew the maps this time around, but that misses the point. If the Democrats had been in charge, they would have done the same thing, and Republicans would have sued. As long as states have partisan processes to draw political lines, the results will be, well, partisan; and the product will be districts -- both for congressional races and state-level representation -- that tend to elect politicians either considerably to the left or right of center.
In some states, nonpartisan agencies draw maps using apolitical data. In Iowa, the state with the most experience with this strategy, the result has been more competitive, more rational districts, and a perception across political lines that redistricting is not a simple spoils system.
This may be a propitious time for Virginia to move toward a more professional, less overtly political redistricting system. If the court's decision stands, redistricting will proceed with a Republican General Assembly and a Democratic governor; neither party can be certain of dominating the process, and neither knows who will control which levers of state power when the process begins anew after the 2010 census. In the face of such uncertainty, a rational system, one in which districts are determined without regard for which side they will help or hurt, ought to be more attractive to both sides than one under which raw power rules the day. Gov. Warner, instead of merely protecting his party's interests in a fistfight, ought to push for such an improvement.
Democratic Gov. Mark R. Warner and Republican Attorney General Jerry W. Kilgore were on a legal and political collision course tonight over a judge's ruling invalidating Virginia legislative districts, a constitutional clash that could result in all new elections for the House of Delegates in less than eight months.
As Warner and Kilgore prepared for a showdown over appealing the ruling -- which Kilgore plans to do against Warner's wishes -- leaders in both parties struggled with the possibility that they may have to spend hundreds of thousands, if not millions, of dollars on campaigns in perhaps all 100 House districts Nov. 5.
Salem Circuit Court Judge Richard C. Pattisall ordered the new House elections when he ruled that the General Assembly had crafted an unconstitutional redistricting plan last year that dilutes black voting strength in several communities.
Pattisall said the Republican-led assembly had engaged in "racial gerrymandering," notably in a dozen cities and counties in the Hampton Roads area of southeastern Virginia.
In reviewing legal challenges to more than two dozen legislative districts, the judge found that some, such as the 74th House District, violated constitutional requirements because they were not contiguous and compact, while others were drawn for racial reasons that served no compelling state interest.
Pattisall described the 49th House District, the only Northern Virginia district discussed in the ruling, as "narrowly tailored to meet a compelling state interest." The 49th is the first district in which most residents are minorities and the largest minority group is Latino.
The judge, a former Roanoke County Democratic Party chairman, said the legislature and Warner now must devise new boundary lines for the House and state Senate, win approval of that plan from the U.S Justice Department and then hold House elections by the end of the year.
The ruling, issued late Monday, sent a shock wave through the state's political establishment, though Democrats and Republicans alike had long surmised that Pattisall might rule the way he did.
The tremor reverberated today. What was to have been a placid election year -- with mostly predictable U.S. Senate and congressional races on the ballot -- was suddenly a high-stakes contest between Warner and Kilgore, two ambitious politicians trying to respond to the demands of their most ardent partisans.
Warner, on the job for two months, chided Kilgore in a letter for announcing an appeal of the ruling without first consulting the governor, the chief executive of state government.
"It was not appropriate," said Warner, who also made his strongest statement yet in support of the ruling. "The court did not rush to judgment, and neither should the commonwealth."
Kilgore, who would like to run for Warner's job in 2005, was keeping a low profile today, though his advisers said emphatically that the GOP attorney general was poised to file a notice of appeal as soon as Pattisall formally issues the legal order to carry out his ruling.
Much of today's attention was focused not so much on the merits of the ruling -- which ignited protests by GOP leaders -- but the relative legal positions of Kilgore and Warner, as well as their strategies for keeping each other off balance.
Advisers on either side who spoke on condition they not be identified by name offered sharply different assessments of the statutory powers that Warner might exercise to block Kilgore's appeal and, conversely, what authority the attorney general has to pursue an independent course in defense of a redistricting plan fashioned by fellow Republicans in the legislature.
Warner, whose constituency includes many black voters, is the final arbiter of all legal appeals that the state government decides to file, the governor's strategists said, citing both the state Constitution and the legal Code of Virginia. Although the attorney general may advise on those appeals and enjoys a large measure of political independence, that person's powers are circumscribed by law and custom, Warner strategists said.
Kilgore advisers countered by saying that as Virginia's chief legal officer, it is Kilgore's duty to defend state laws, including the statute that created the legislative districts last year. The Code of Virginia and state Constitution grant the attorney general a great deal of autonomy and broad discretion about which cases to take on, the GOP strategists said.
"Jerry Kilgore doesn't work for Mark Warner," said one adviser to the attorney general. "His clients are the people of the commonwealth."
What happens next was unclear tonight. In the unlikely event that Kilgore relents, the state's electoral machinery could soon gear up for a special legislative session to redraw district lines, followed by a mandatory 60-day review period by Justice and a subsequent flurry of nominating procedures for House candidates in the fall.
If Kilgore defies Warner's wishes, the governor could seek a Circuit Court injunction to block the appeal or ask the Democrats who originally filed suit against the redistricting plan to challenge Kilgore's standing.
It was far from certain that the Virginia Supreme Court would grant Kilgore's request to overturn Pattisall's ruling and unclear how any decision by the high court would affect the tight timetable for candidate selection and election preparations.
State Board of Elections Secretary Cameron P. Quinn, the state's top elections official, said her agency would be hard-pressed to have registrars in 134 localities ready for House elections. But Quinn noted they would have to be.
"If the court orders us to hold the election, we're going to do everything we can to make sure those elections are conducted accurately and fairly," Quinn said. "But, given the resources available, it's going to be a challenge."
The 100 delegates also would be on the November 2003 ballot, along with the 40 senators, for the regularly scheduled General Assembly election.
Regardless of the outcome -- and it could be several weeks before all the legal issues are resolved -- Pattisall's ruling is already being watched closely by national party leaders.
Democratic National Committee Chairman Terry McAuliffe issued a statement praising Pattisall for "striking down Republican attempts to twist the Constitution to their own partisan ends and disenfranchise Virginia's African American voters."
Thomas B. Hofeller, redistricting director at the Republican National Committee, said Pattisall "has taken off on a unique course here, in a direction that has never been taken by a court in this nation."
"It absolutely needs to be appealed," Hofeller said.
How tightly states can pack minorities into voting districts is shaping up as the biggest legal question in this decade's redistricting efforts, and Monday's decision striking down Virginia's plan offers an early window into how judges will consider the issue.
Relying on Virginia's Constitution, a Salem judge found that the General Assembly illegally diluted minority voting rights by creating districts that split counties and skipped over bodies of water.
But what made Judge Richard C. Pattisall's decision nationally noteworthy was that he used reasoning from a series of U.S. Supreme Court decisions upholding white challenges to irregular majority-black districts and found that the same rules applied when black rights were infringed.
The 1993 case of Shaw v. Reno struck down a North Carolina district that snaked around the state to pick up enough black precincts to help elect a black member of the House of Representatives. Now, Pattisall has found that stringing together barely touching precincts from several counties and cities to create a super-majority of minority voters unfairly reduced black influence in the surrounding districts.
"This is really the mirror image. . . . It just goes to show that the principle of Shaw is not against minority voting. It's against racially drawn districts," said James F. Blumstein, professor of law at Vanderbilt University.
Pattisall ordered the state to come up with new boundaries and hold new elections in November, a far more aggressive stance than most recent voting rights cases, legal experts said. Most previous decisions have given legislatures until the next scheduled election to redraw the lines.
In the 1990s, Republicans and civil rights groups joined forces behind redistricting plans that increased minority legislators and GOP victories by consolidating blacks into a few usually urban districts, a practice derided as "packing." The "majority minority" districts promptly elected black Democrats, but the GOP gained in overall strength because the remaining districts were whiter and more Republican.
Now Democrats are fighting back by trying to "unpack" black voters, who vote overwhelmingly for Democrats, by spreading them out into more districts that would then become more politically competitive.
Pattisall's decision found that a series of House and Senate districts in southeastern Virginia illegally diluted black voting strength because they had significantly more minority voters than necessary to give minority candidates a "reasonable" chance at winning office. Most of the districts are 55 percent or more minority, and black candidates routinely won by 20 percentage points.
Democrats hailed the Virginia decision and a similar 2001 federal court ruling that upheld a New Jersey plan to spread minority voters more evenly around Newark.
This case "is very important. It suggests that there are legal limits to the Republicans pursuing this kind of strategy," said Joseph Sandler, general counsel of the Democratic National Committee.
Tom Hofeller, director of redistricting for the Republican National Committee, called the decision "a really novel approach to the Voting Rights Act that we think will be overturned." The GOP may also score legal success if it can prove that the irregular districts were drawn for partisan -- rather than racial -- reasons.
Virginia Attorney General Jerry L. Kilgore, the lone Republican in statewide office, has already said he plans an appeal -- which would be against the wishes of Gov. Mark R. Warner (D).
Since the Shaw case, state legislators have been struggling to steer a course between two principles that sometimes conflict. Under the 1965 Voting Rights Acts, redistricting committees must make sure that their plans do not dilute minority voting rights by breaking up minority communities among too many districts or packing too many minorities into a single district. But at the same time, race can't overwhelm other considerations, such as compact, regular districts and existing political boundaries.
"States are really in a bind. They must take race into account, but they can't consider it unduly," said Harvard University law professor Heather Gerken.
In Virginia, the second principle is particularly important, because the state Constitution -- unlike the U.S. Constitution -- specifies that districts must be "compact and contiguous."
The survival of Pattisall's ruling that three Virginia House districts and three Senate districts are not contiguous will probably hinge on whether the Virginia Supreme Court agrees with his definition of "contiguous." Pattisall wrote that districts that connect over water violate the state Constitution if voters have to drive into another district to get from one piece to another.
But his broader decision on racial gerrymandering will probably have reverberations far beyond Virginia. It forces legislators to determine how many minority voters in a district are too many or too few.
Some civil rights groups have argued that districts should be at least 60 percent minority to guarantee that the minority candidate can win.
"It's about time that a judge [said] packing black voters into safe districts is a waste of black votes. Blacks are much stronger as the swing vote," said Abigail Thernstrom, author of "America in Black and White."
Gov. Mark R. Warner sought Tuesday to put the brakes on a push by Republicans to preserve their historic gains in last year's legislative election.
The Democratic governor chastised Republican Attorney General Jerry W. Kilgore for his snap decision to appeal a judge's ruling that the General Assembly's 2001 redistricting plan is unconstitutional. Warner sent a letter to Kilgore complaining that he was not consulted.
On Monday, Salem Circuit Court Judge Richard C. Pattisall ruled that GOP legislators improperly considered race when drawing districts in Hampton Roads and Richmond. He also rejected several Hampton Roads districts where two or more land masses were separated by bodies of water and no bridge exists.
Pattisall ordered the legislature to revise the districts and hold new House elections in the fall. Senators are not scheduled to run in their new districts until next year.
Warner did not endorse Pattisall's ruling, but his letter suggests that he may push for new districts. The plan adopted last year allowed Republicans to pick up 12 seats in the House, giving the GOP a 64-seat majority capable of thwarting Warner's initiatives.
``I am determined to proceed on this issue in a manner that is in the best interests of the people of Virginia,'' Warner wrote. ``The court did not rush to judgment, and neither should the Commonwealth.''
Warner's actions set the stage for a confrontation with Kilgore -- a contender for the 2005 GOP gubernatorial nomination. Kilgore maintains he has sole authority to defend state laws in court.
Republican legislators predicted that Kilgore would prevail and that the Virginia Supreme Court would uphold the new political boundaries on appeal. However, they defended Warner's right to participate, and some suggested he could be granted a separate attorney to represent him in court.
``I can't think badly of somebody for acting in the interests of his party,'' said House Majority Leader H. Morgan Griffith, R-Salem. ``If he declares open war, that's another story.''
Even if Warner succeeded in blocking a state appeal, GOP leaders said, they would challenge Pattisall's order.
GOP legislators were contemptuous of the ruling, noting that the U.S. Department of Justice signed off on Virginia's redistricting plan last year.
``I have every confidence that this decision will be thrown out,'' said Del. Winsome E. Sears, R-Norfolk. ``If the Department of Justice has given its stamp of approval, who am I or who is anyone else to say that its decision should not stand?''
State Sen. Kenneth W. Stolle, R-Virginia Beach, said of Pattisall: ``He's just ignored every court decision that's come down over the last 20 years.'' Stolle was a major architect of the South Hampton Roads districts with Del. S. Chris Jones, R-Suffolk.
Republicans say they drew the new districts to meet federal requirements to maintain existing majority-minority districts -- five in the Senate and 12 in the House. They created one new Northern Virginia district of mostly Latino and Asian voters, which Pattisall upheld.
Democrats contend that minority voters would be better served if many of the districts were drawn to have black pluralities of no less than 45 percent. That would give black voters greater influence in adjacent districts where white Republicans hold office.
``We all had a sense they were packing these districts with black folks to the degree it was totally unnecessary,'' said Del. Kenneth R. Melvin, D-Portsmouth, whose district was ruled unconstitutional.
Mark E. Rush, an associate professor of politics at Washington and Lee University, said he thinks Pattisall's ruling will be overturned because it fails to follow previous court decisions.
The Virginia Supreme Court ruled in 1992 that a district can be divided by a body of water, Rush said. Pattisall overturned districts similar to ones that were upheld a decade ago.
Rush also noted that the U.S. Supreme Court ruled last year that racial considerations are allowed as long as the primary motivation in drawing the boundaries is political. Based on that decision, the U.S. Department of Justice approved Virginia's redistricting plan.
``This decision is amazing,'' Rush said. ``He says racial gerrymandering exists even though the federal government says it doesn't.''
Before Richard C. Pattisall became a judge, he was a die-hard Democrat.
In 1969, he was selected chairman of the Democratic Party in Roanoke County, a job he held for about six years. In 1970, he ran unsuccessfully as a Democrat for the state Senate.
Those events stand at the crux of Republican charges that Pattisall was biased Monday in striking down the General Assembly's 2001 redistricting plan, which helped the GOP gain 12 House seats during last fall's elections.
The Salem Circuit Court judge ordered new elections this year under newly drawn House districts.
``The judge's decision certainly has to be political because it certainly wasn't legal,'' said House Speaker S. Vance Wilkins Jr., R-Amherst, a key author of the plan.
Pattisall declined interviews on Tuesday. But several longtime allies -- all Democrats -- dismissed the criticism as unfair. They described the 64-year-old jurist as thoughtful, evenhanded and not afraid to challenge conventional thinking.
``Judge Pattisall has got a reputation for being very deliberate, careful and studious,'' said Del. Clifton A. Woodrum, D-Roanoke. ``Obviously, those who are criticizing him now are just too lazy to read his opinion and find it easier to attack.'' Woodrum said it is unfair to single out Pattisall for his past political activities. He noted that a host of former state legislators -- both Democrats and Republicans -- now serve as judges.
What Democrats and Republicans agree on is that the little-known judge has thrown state politics into a tizzy.
Pattisall was born in Norton and grew up in Clintwood in Southwest Virginia. He is a tall, broad-shouldered man, a high school sports star who went on to play football at the University of North Carolina and semi-professional baseball.
Pattisall graduated from the University of North Carolina law school in 1962. He came to Roanoke in 1968 as an assistant commonwealth's attorney to Republican Raymond R. Robrecht.
Pattisall was proud of his 1970 run for the state Senate, despite his defeat.
``We had the Republicans sweaty and scared,'' he said at the time.
Although Pattisall stepped down as the local Democratic chairman in the mid-1970s, he kept his partisan connections. Former State Sen. J. Granger Macfarlane, D-Roanoke, twice unsuccessfully nominated Pattisal for the bench before helping him secure a district court seat in 1989. He was elevated to the circuit court in 1994.
Republicans accused Democratic lawmakers of ``judge shopping'' when they filed their redistricting suit in Pattisall's court last year. They asked the judge to recuse himself, citing his partisan past.
Pattisall declined, announcing that he planned to retire this year and had no interest to protect.
``Nobody can get to me,'' he said at the time. ``I'm bulletproof.'' But in December, Pattisall changed his mind and came to Richmond to seek reappointment. He was rejected by Republicans who control a judicial review panel. They claimed he showed poor judgment in taking the redistricting case.
A judge ruled Monday that a state redistricting plan drafted last year by the Republican-led General Assembly was unconstitutional and ordered new elections be held this year for the House of Delegates.
Judge Richard C. Pattisall said no new special elections should be conducted in the state until the General Assembly and governor approve a new redistricting plan for both the House and Senate.
Pattisall said in the ruling that new elections should be held "for each new electoral district enacted for the House of Delegates." It was unclear whether the ruling would require new elections in every House district or just those created by the new plan.
The ruling focused on what Pattisall called the racial gerrymandering that occurred in newly created districts in southeastern Virginia and around Richmond.
"The Court finds that the General Assembly has subordinated traditional redistricting principles to race in drawing district lines," Pattisall wrote.
Attorney General Jerry Kilgore, a Republican, said he would appeal the ruling, saying he did not believe the plan violated the state Constitution.
"The new legislative boundaries approved by the General Assembly were not drawn with an effort to discriminate against anyone on the basis of race, gender or any other characteristic," Kilgore said.
Gov. Mark R. Warner said Monday night he would review the decision.
"The fundamental basis of our democracy is the fair apportionment of elected representatives to ensure that the voices of all Virginians are heard," the Democrat said in a statement.
Both the House and Senate redistricting plans were approved by the U.S. Justice Department in a review last year.
State Democrats sued in June 2001, alleging the redistricting plan approved by then-Gov. Jim Gilmore and the General Assembly engaged in racial, gender and partisan gerrymandering.
Twenty-two new members, including 19 Republicans, have been elected to the House under the Republican plan. The GOP currently holds a 64-34 margin over the Democrats in the 100-seat House � its largest majority ever. The two remaining seats are held by conservative independents who usually side with the Republicans.
Pattisall denied a motion by Democrats in September to use the old district map for last fall's state elections while the new plan was being contested in court.
"The redistricting was done last year on a purely partisan, political basis," said state Democratic Party Chairman Lawrence H. Framme III. "It was done with the purpose of getting as many Republicans elected as possible."
In his ruling Monday, Pattisall ordered a new House and Senate plan be drawn up by the General Assembly, with elections to be held this year for "each new electoral district" created in the House. The election cycle would then revert to normal, with House and Senate elections coming again in 2003.
Republicans, meanwhile, vowed to back the attorney general's office in the appeal.
A Virginia judge struck down the General Assembly's 2001 redistricting plan as unconstitutional today and raised the prospect of political upheaval across the Old Dominion by ordering new House of Delegates elections this year.
Richard C. Pattisall, chief judge of the Salem Circuit Court, invalidated Senate and House districts that were redrawn a year ago by the Republican-controlled legislature, making Virginia's the first state plan to be struck down since the last U.S. Census.
Senators would run from new districts in 2003, when their four-year terms were already set to expire.
In a 51-page ruling, Pattisall focused on what he said were unconstitutional district boundaries and "racial gerrymandering" in Virginia's vast southeastern corner, a geographically diverse region that includes the old port cities of Norfolk and Newport News, as well as emerging suburbs and more rural, pine-and-peanut communities such as Suffolk.
Pattisall said he agreed with complaints, advanced by Democrats during last year's redistricting session and a June legal challenge, that African Americans were unfairly packed together to confine their voting strength to the smallest possible number of districts.
But whites also found themselves in new legislative districts that had little to do with long-held community interests, Pattisall said.
"The evidence clearly demonstrates that the citizens [of 11 cities and counties], white and black alike, with whom they share common goals, culture, economics, life-styles and associations, have been removed from their communities of interest and placed into districts in which they have little, if any, common interest," Pattisall said.
Many voters "are unreasonably burdened in many instances by significant distances and natural geographic barriers, creating a lack of access to one another," Pattisall added.
The judge used occasionally stinging language in dissecting the GOP-backed plan, saying, "The court sees before it the unwarranted results of the multi-division of cities and counties" and "the retreat of the General Assembly from the application of traditional race-neutral redistricting principles."
In the cities of Newport News and Hampton, where 137,000 of 326,000 residents are black, the legislature "has dismantled these cohesive communities," Pattisall said. In Suffolk and Portsmouth, he added, more than 20,000 residents "have been removed from their communities in utter disregard of traditional redistricting principles."
Apart from the electoral chaos that Pattisall's ruling could create over the next few months -- with possible primaries, caucuses and mini-conventions in an otherwise quiet year for state politics -- the decision will almost certainly touch off a frenzied round of political jockeying between the major political parties.
The partisan positioning got started late today when Attorney General Jerry W. Kilgore, the only Republican to hold statewide office in Virginia government, announced that he will appeal Pattisall's ruling immediately. Kilgore apparently issued his announcement before notifying Gov. Mark R. Warner (D) or his senior staffers of the judge's ruling.
Kilgore defended the new legislative boundaries, saying they "were not drawn with an effort to discriminate against anyone on the basis of race. . . . They were drawn properly with respect to new population data and are constitutionally compact and contiguous."
Kilgore added that he was "confident we will win on appeal."
Warner, who may have the ultimate say on whether Kilgore proceeds with an appeal, issued a brief statement that echoed the judge's ruling, without committing the state to a course of action.
"The fundamental basis of our democracy is the fair apportionment of elected representatives to ensure that the voices of all Virginians are heard," Warner said. "I will review this decision carefully . . . and act in the best interests of all Virginians."
A feud between Warner, who is coming off a legislative session that ended abruptly with the demise of tax referendums he sought, and Kilgore, who is laying the groundwork for a 2005 gubernatorial bid, would be reminiscent of a Democratic family feud in the early 1990s between the governor and attorney general, ostensibly the governor's chief legal adviser.
That quarrel went all the way to the state Supreme Court, which ruled that then-Gov. L. Douglas Wilder generally had the legal upper hand over Attorney General Mary Sue Terry in determining which appeals were to be filed by the state government. (Ten years ago, a redistricting plan crafted by a Democratic legislature while Wilder was governor was challenged but ultimately upheld by the courts.)
Beyond the possibility of a Warner-Kilgore political brawl, Democrats tonight were eagerly anticipating a scenario in which majority Republicans would have to defend dozens of House seats against the efforts of Warner, a popular Democratic incumbent, and his proven fundraising prowess.
"It does have the potential for the rearrangement of the composition of the House of Delegates," said Del. Brian J. Moran (Alexandria), a House Democratic leader.
Ronald A. Klain, a Washington-based lawyer who advised Virginia Democrats on the redistricting case, hailed Pattisall's ruling as "an extremely well-reasoned opinion. If the state chooses to appeal it, it will stand up on appeal."
Klain, who was general counsel to the Gore-Lieberman campaign during the Florida recount of the presidential election, coached state Democrats through the Virginia redistricting process, which was among the first in the nation after the 2000 Census.
On the floor of the 100-member House and 40-member Senate, Democrats carefully created a record on which to base a legal challenge, parts of which Pattisall dismissed along the way.
The redistricting plan forced several of the Democratic Party's most seasoned lawmakers into retirement and paved the way for the election of 22 new legislators, giving Republicans 64 seats in the House. Several new districts in booming Northern Virginia swelled that GOP tide.
All members currently serving in the House of Delegates may keep their districts for now, but those political divisions must never be used again, Pattisall said.
The Bush Justice Department reviewed the Virginia plan last year and approved it.
By coincidence, Pattisall's term as a judge is expiring, and he asked the General Assembly to reelect him earlier this year, normally a formality in Richmond. Later in the legislative session, Pattisall, a Democrat, removed his name from consideration for reelection by the Republican majorities.
Virginia's state senators are learning to serve two masters because of an interpretation of the state's redistricting law.
As they have for the past 10 years, they continue to represent the constituents who voted for them in their Senate districts.
But they also are representing constituents in districts that this year's redistricting created. In many cases, those constituents aren't the same and never voted for the senators.
Most senators expected to represent their current districts until 2003, when they run for election in the newly created districts. But two Senate special elections called to fill vacancies this year brought to light a 1990 law that seems to say otherwise.
At least that's how the attorney general's office interpreted it.
If a vacancy in an office occurs after the redistricting, the vacancy shall be filled from the district that most closely approximates the district in which the vacancy occurs, the law says. An informal opinion by the attorney general said this means the new district.
The law apparently was changed to accommodate local election officials, who change precinct boundaries to address the newly drawn districts.
The interpretation is good news for Del. R. Creigh Deeds, D-Bath. He secured the Democratic nomination to run for the vacant 25th district seat of the late Sen. Emily Couric, D-Charlottesville, last Saturday. His home in Bath County is in the new 25th district, but not in the old district.
"I didn't make the law," Deeds said. "I certainly didn't draw the map. If I'm chosen to serve in the Senate, I will keep an open door to the people of both districts. When you serve in the Senate, you represent not only your district, but also everybody."
Practically speaking, most legislators began cultivating voters in their new districts as soon as they were drawn up, Deeds noted.
"If he wants to get re-elected in 2003, he has to start paying attention to his new district," he said.
The special election is Dec. 18. Republicans chose their candidate yesterday. The residence of Jane Maddux of Albemarle County is in both the old and new districts.
Couric's old district contained all of Albemarle, Greene, Madison, Nelson and Charlottesville and part of Orange County. The new district stretches farther west to the West Virginia line and comprises all of Alleghany, Bath and Nelson counties, all of the cities of Buena Vista, Charlottesville, Clifton Forge and Covington and parts of Albemarle, Buckingham and Rockbridge counties.
This theoretically could leave Madison and Greene counties unrepresented.
In the newly drawn districts, Greene is in the 24th District, represented by Sen. Emmett W. Hanger Jr., R-Augusta, while Madison is in the 17th, represented by Sen. R. Edward Houck, D-Spotsylvania.
A special election was held in the 14th on Sept. 4, to replace J. Randy Forbes, who was elected to Congress from the 4th congressional district. In the 14th, Del. Harry B. Blevins, R-Chesapeake, ran unopposed in the new district boundaries. The election drew little attention because Blevins was unopposed.
Blevins said when he first heard that the election would be held in the new Senate district, he was so dubious that he double-checked with the attorney general's office.
"It seemed like some people would not have someone representing them," Blevins said. Because of the growth in Chesapeake, about 74,000 people living in Virginia Beach, mostly in the Kempsville area, were taken away from the 14th and put in a new district, Blevins said.
To avoid confusion, Blevins is responding to constituents in both the old and new districts. "Nobody ought to be in a position where they can't call somebody," he said.
The way Sen. Walter A. Stosch, R-Henrico, views it, "I'm pretty well convinced that I represent both districts."
In the new district, Stosch loses a part of eastern Henrico to Sen. Benjamin J. Lambert III, D-Richmond.
But he said if someone called him about a concern in Sandston, he would respond just as if the community were still in his district, he said.
The issue might wind up in court. Former state Democratic Party chairman Paul Goldman said it violates the one-person, one-vote principle. Some people who feel as if they have been disenfranchised have talked to him about filing suit, he said.
State senators in Northern Virginia said yesterday they are uncertain whom they represent or where their district lines begin or end.
The confusion results from a confluence of state law and the election calendar that occurs only once every 20 years: New Senate districts were drawn this year and went into effect immediately, but Senate elections won't take place until 2003.
In the meantime, no one is sure which electoral map to use -- the one in place in 1999, when the current senators were elected to four year terms, or the new one legislators voted into place this year.
"If we are supposedly now representing these new districts, then some people have two senators and other people have none," said Sen. Mary Margaret Whipple (D-Arlington). "It is a very odd thing."
In April, the GOP-controlled Senate drew a new political map based on population changes reflected in the 2000 Census. The plan, which shifted one of the 40 Senate seats from southwest Virginia to just outside the Beltway in Fairfax, was signed this spring by Gov. James S. Gilmore III (R).
Republican Sen. William C. Mims (Loudoun), who was instrumental in redistricting the Senate this year, said he believes the old Senate districts should remain in force until the next election for that chamber.
"My viewpoint is I continue to represent all of the people I did in 1999," Mims said. "The General Assembly, through redistricting, should not trump the will of the voters in the last regular election."
Mims said he believes that was the assumption senators made when they voted for the redistricting plan.
But state officials apparently have come to another conclusion, according to a report initially appearing in the Virginian-Pilot newspaper.
Officials at the State Board of Elections have told organizers of a special election in Charlottesville to use the new district lines for the Dec. 19 contest to fill the seat held by Democratic Sen. Emily Couric, who recently died of cancer.
That decision was similar to a directive by election officials several months ago to use the new districts for a special election to fill the Senate seat vacated by J. Randy Forbes (R), who was elected to represent the 4th Congressional District in Congress.
Senators said yesterday that election officials are basing their decisions on an interpretation of a 1990s election law, which says that any special election should be held in the district that most closely resembles the one where the vacancy took place.
The Virginia Constitution is no help on the issue. It requires only that redistricting take effect "immediately," senators said. The constitution says nothing about how to deal with sudden vacancies. So lawmakers must depend on the law saying they occur in the new district.
State election officials were not available yesterday. But their decisions regarding the special elections in Virginia raise questions about the boundaries of all the other Senate seats.
If the new districts are in force, what happens to the people in the 39th District, which used to be in southwest Virginia but was moved to Fairfax because of the growth in population there? No one has been elected to that new district yet.
In addition, there are people throughout the state who live on the border of two Senate districts. If the old ones are still valid, those people are represented by one senator; if it's the new districts, they are represented by a different one.
"It's an absurd result," said former senator Joseph V. Gartlan Jr. (D-Fairfax), who served for two decades and was chairman of the elections committee in the Senate. "The only way you can keep the office representative of the people is to fill a vacancy from the same boundaries. Otherwise, you run into this absurdity."
Confused senators are unsure what to do.
"Any constituent who came to me for service, in the new part or the old part, would be someone I would help," Whipple said.
"I think that every legislator continues to feel a responsibility to the electorate that sent us to Richmond, whether those individuals are part of our new district or not," he said.
A quirk in state law may have left tens of thousands Virginians misrepresented in the state Senate or not represented at all, a newspaper reported Monday.
General Assembly leaders are debating whether senators represent the districts they were elected to in 1999 or new ones adopted this spring.
Almost 74,000 people in Virginia Beach and Chesapeake and another 45,000 in the counties surrounding Charlottesville may be unrepresented, The Virginian-Pilot reported.
Some lawmakers say some voters don't have one senator, while others actually have two.
Other legislators insist the one man, one vote standard has not been violated, even though hundreds of thousands of people across the state are represented by senators whom they never had the opportunity to vote for or against.
Every 10 years, states are required by the U.S. Constitution to adjust legislative and congressional district lines to reflect shifts in population.
In the past, special elections for the state Senate were held in old districts. But this year the newly drawn boundaries are being used because of a 1990 law guiding elections for the first time.
Two special elections this year brought the Senate district snafu to light.
Chesapeake Republican Harry B. Blevins was chosen in September to succeed J. Randy Forbes, who resigned to run for Congress. Only 84 of the 53,000 Virginia Beach voters in Blevins' district voted for him, said Karen Beauchamp, chairwoman of the Virginia Beach Republican Committee.
The change in Blevins' district caused confusion among city residents, Beachamp said. ``People went to vote for him and couldn't.''
The turnout attracted little attention because Blevins was unopposed and because he lives within both the old and new district boundaries.
The second special election _ scheduled for Dec. 18 _ will fill the seat held by Democrat Emily Couric, who died last month after battling pancreatic cancer.
Democrats nominated Del. R. Creigh Deeds of Bath County, who lives in the new district but not the old one.
Republicans in Madison and Greene counties and parts of Albemarle and Orange counties are upset that they've been pushed out of the district and cannot vote in the election.
``That means we're not represented for two years. The one person, one vote don't stand,'' said David Myers, chairman of the Greene County Republicans, who are now constituents of Augusta County Republican Emmett W. Hanger. ``I'm sure Emmett will come over and represent us but we haven't elected him.''
Virginia's other 38 state senators were elected under the old political maps, and they aren't scheduled to run in the new districts for another two years.
Sen. Kevin G. Miller, R-Harrisonburg, believes state senators will continue handling requests from constituents in their old district until new elections in 2003.
``We're all state senators, and I represent all citizens and I certainly don't ignore the people who were in my district when I was elected in 1999,'' said Miller, who is chairman of the Senate committee that oversees election and redistricting laws.
Del. Marian Van Landingham, D-Alexandria, said some of her Fairfax County constituents have been told by the local registrar that Madison E. Marye, a Democrat from Montgomery County, is their senator even though he lives 250 miles away.
A General Assembly committee recognized the potential for problems three years after the special elections law was adopted. The group decided not to repeal it because once a new redistricting map is adopted, localities change precinct boundaries to correspond with the plan.
University of Virginia political science professor Larry Sabato thinks the old districts should be used until all 40 Senate seats are up for election in 2003.
``This is the first time this has ever been done and it
seems odd to me,'' he said. ``I assume the courts will have to address
this. Something is very wrong here. People should know who their
representative is and know they are being represented.''
The Loudoun County redistricting battle became uglier this week, further splintering the once-cohesive Board of Supervisors and generating high-voltage political theatrics -- without bringing the county closer to new election districts.
On Monday, supervisors threw out the redistricting plan they adopted in October, replacing it with one that would pit supervisors Jim Burton (I-Mercer) and J. Drew Hiatt (R-Dulles) against each other in a redrawn Mercer District. The current Dulles District would be eliminated, with most of it going into a new Potomac Falls District.
Board Chairman Scott K. York (R-At Large) voted for the new plan, then denounced it and rallied both of his fellow Republicans on the board, Hiatt and Eugene A. Delgaudio (R-Sterling), to walk out of the meeting in protest. The public hearing at the County Government Center continued without them.
"I'm not happy with the plan, but it's better than what the members of the board supported previously," York said Tuesday. "It still stinks."
By casting his vote with the winning side, York has the right to call for a reconsideration or a revote. He declined to say whether he planned to do so. Burton, Hiatt and Delgaudio voted against the new plan, and several supervisors said the matter was not resolved.
York has said the county could miss the December deadline for sending a completed plan to the Justice Department if more time was needed to fashion a better plan.
The plan adopted Monday in a 6 to 3 vote, like the one adopted in October, keeps three districts in western Loudoun. Those stretch east to include pieces of more-populous suburban areas where much of the county's growth has occurred. Because of population growth, each new district must be redrawn to include about 21,000 residents.
Supervisor Charles A. Harris (D-Broad Run) proposed the new plan. Among other changes, it shrinks the northwestern Catoctin District. Under the October plan, Catoctin stretched more deeply into Harris's suburban Broad Run District, raising concerns among residents there.
The redistricting debate has centered on whether western Loudoun should lose a district and eastern Loudoun should gain one after a decade in which the county's population has doubled, driven mostly by growth in the east.
Some residents, activists and politicians have argued that supervisors from more rural western areas are ill-equipped to represent suburban voters in the county's east. Others say efforts to maintain three western districts would tear apart communities in eastern Loudoun, and they warn of a "power grab" by the west intended to rob the east of political power on such key issues as the number of houses that can be built in certain areas.
"Fix this disgrace," said James Clarke, a property rights activist who hopes to turn his land near Dulles International Airport into a subdivision. "It is too much power in the west."
But others said the east-west distinction is a political construct with no real meaning. They contend that talk of a "power grab" is an example of overheated rhetoric by those who hope to divide Loudoun on east-west lines for their own purposes.
Burton, who supported the redistricting plan with three western districts in October, said he has changed his mind.
"I have belatedly and reluctantly come to the conclusion that the county would be better off with two western districts instead of three," he said. "The artificially created east-west split needs to be avoided because it is detrimental to the county and its future, and we should do everything we can to avoid it."
Neither Burton nor York would comment on how they would try to overturn the plan passed Monday.
Amid a wave of Republican success in Virginia House races yesterday, voters in central Fairfax County ousted five-term Del. John H. Rust Jr., the architect of the GOP's redistricting in Northern Virginia and one of the party's chief strategists in the General Assembly.
Across the 37th District, which includes all of Fairfax City, voters chose to send Rust, 54, back to his law office. By 52 to 48 percent, they picked J. Chapman Petersen, 33, a member of the Fairfax City Council, who knocked on doors 14 hours a day and raised more than $100,000 in his bid for office.
Rust, who just two years ago made a serious bid to be speaker of the House, said he was surprised and disappointed to have been the only Republican incumbent statewide ousted in yesterday's voting.
"You look at all the other races, I'm the only one that lost," Rust said. "Pretty clearly, it was a districtwide sentiment. They were saying they wanted Chap Petersen. I'm sorry I lost."
Petersen, who had accused Rust of waging a negative campaign in the final weeks, said personal, retail campaigning gave him victory. "I worked harder. I knocked on about 14,000 doors and made contact with voters," he said. "I walked into yard sales. I walked into pool parties. I walked into barbecues. I did it all summer, and today I saw those people again."
Democrats reveled in their upset. Rust had been one of their prime targets, but few had dared to hope that a well-financed and well-liked delegate could be defeated by a first-time candidate for the General Assembly.
Fairfax Supervisor Gerald E. Connolly (D-Providence) said Rust did himself in by failing to work with local officials -- many of them Democrats -- on solutions to the region's transportation and education crises. Critics also saw Rust as tied too closely to Gov. James S. Gilmore III (R) during this year's state budget impasse.
"This ought to be an alarm bell for members of the General Assembly who do not feel they are accountable," Connolly said. "A number of us turned on Jack Rust when he turned on us. He was the self-anointed leader from Fairfax on behalf of Gilmore, and he has now paid the price."
Rust also struggled to overcome anger among many in the schools community who felt that he was not supportive of the effort to allow Fairfax residents to vote in a referendum to increase the sales tax to benefit school projects.
Even though Rust voted for the bill, school supporters campaigned against him, calling him a fair-weather friend when it came to education.
"Definitely, school funding mobilized a lot of parents in Rust's district," said Mitch Luxenberg, the president of the Fairfax County Council of PTAs. "They wanted that single-minded devotion to some innovative solution to funds for renovation. That was an important issue in this district."
Rust may also have made a misstep when it came to redistricting.
The leader of that effort in Northern Virginia, Rust pushed to unify Fairfax City inside the 37th District, which also includes George Mason University. By doing that, election watchers say, he gave Petersen -- a longtime city resident and a member of the council -- a base from which to run.
Rust agreed with that analysis but said he had no regrets.
"I think they're probably right," he said. "I thought it was the right thing to do."
Northern Virginia Republicans said Rust's voice as a moderate advocate for the region will be missed.
Fairfax City Mayor John Mason, a Republican who supported Rust, said he was known for his ability to find creative solutions.
"Rust clearly was one of the smartest delegates in the House and has an enormous amount of intellect to offer," Mason said. "It's fair to say the loss of Jack's acumen and intellect is a loss to the House of Delegates."
Staff writer Michael Laris contributed to this