Could Virginia delegates face three elections in three years? Here’s the latest on the legal effort

Capitol Connection

House speaker Del. Eileen Filler-Corn, D-Fairfax, at rostrum, listen as House majority leader, Del. Charniele Herring, D-Alexandria, on monitor, speaks in an empty Virginia House of Delegates chamber during a Zoom Legislative session at the Capitol in Richmond, Va., Wednesday, Feb. 10, 2021. (AP Photo/Steve Helber)

RICHMOND, Va. (WRIC) – Although Virginia has certified this year’s election results, the outcome of a case in federal appeals court could determine whether the incoming House of Delegates members will have to run again in 2022.

In June, former Democratic Party chairman Paul Goldman filed a lawsuit in the Eastern District of Virginia arguing the state’s current legislative districts are unconstitutional because they haven’t been updated with new census data to reflect the population shifts over the last decade.

The lawsuit aims to have the court set one-year terms for the new state delegates and force Virginia to hold another round of elections next year under redrawn districts, a potential scenario that would put the battle for control of the House of Delegates on the ballot three years in a row.

U.S. District Judge David J. Novak ruled the case could move forward against the individual members of the State Board of Elections and Virginia’s Elections Commissioner Christopher Piper, but the attorney general’s office appealed that decision to the Richmond-based 4th U.S. Circuit Court of Appeals.

As the parties involved await a ruling from the appeals court, Goldman says he expects to eventually prevail but that he can envision a path where the lawsuit is delayed for months.

“I can see how the new AG would say they need more time to review it, and then the primaries begin in June for the congressional races, so I can see them trying to hold it back,” Goldman told 8News in an interview. “But I don’t think it’s practicable and it would be unfortunate.”

Hoping to prevent the case from sitting in limbo, Goldman filed motions with the appeals court on Nov. 15 requesting an expedited hearing and mediation.

The attorney general’s office did not object to Goldman’s request for an expedited briefing schedule, writing in a Nov. 23 filing they could submit an opening brief by Dec. 6 and respond to Goldman’s brief within a week. The AG’s office did urge the appeals court to deny Goldman’s motion to compel mediation.

“This appeal raises discrete questions of law antecedent to the merits and unsuitable for resolution through mediation. As a result, mediation will serve only to prolong the proceedings and delay resolution of Appellee’s case,” Brittany M. Jones, Virginia’s deputy solicitor general, wrote in the filing.

If the appeals court agrees to dismiss the case, Goldman could appeal the decision. If the attorney general’s office’s appeal is denied, a three-judge panel will hear Goldman’s lawsuit.

While the state may argue census delays brought on by the pandemic held up Virginia’s redistricting process, Goldman said allowing the incoming state delegates to serve full, two-year terms after winning under districts with wide population disparities is not the proper solution to the problem.

“I sued in June, has anyone said I was wrong? Nobody has tried to refute my argument. You can’t,” Goldman said. “The question is remedy. What’s the remedy?”

Goldman, an attorney who served as an aide to former Gov. Douglas Wilder, contends his solution would be the best way forward but he anticipates the case will stall in court again once Attorney General-elect Jason Miyares takes office in January.

Goldman noted that Attorney General Mark Herring, whose office has tried to get Goldman’s lawsuit dismissed on technical grounds, has not weighed in on his argument that the Nov. 2 House elections were held under unconstitutional maps and the results are invalid.

In October, Judge Novak asked Herring’s office if the attorney general would consider issuing an official opinion on the case after one was not issued following a request from Del. Lee Carter (D-Manassas).

Charlotte Gomer, a spokeswoman for Herring, said in an email to 8News on Oct. 13 that “just because a requested opinion has not yet been issued doesn’t mean one won’t be issued, and the timeline for processing and responding to an opinion request can vary widely from a few weeks to a few months or longer, depending on the complexity of the subject matter and other factors.”

He cited the likelihood that Miyares would have a new team take over the case as he reshapes the attorney general’s office. Goldman also pointed to the possibility that under Miyares, a Republican, the AG’s office could make similar arguments that Herring’s office has made in its effort to have the lawsuit dismissed.

In the email, Gomer added that an opinion from the AG does not change or create laws but is merely an analysis of the law. When reached for comment on the status of the lawsuit, Gomer declined to comment on the pending case.

Like the rest of the country, congressional candidates in Virginia have already started campaigning ahead of the primaries for the 2022 midterms.

Goldman said the time crunch political parties could face trying to get Virginia House candidates on the ballot for the June primaries could discourage lawmakers from openly supporting his effort, especially Republicans who appear to have secured a two-seat majority in the 100-chamber.

Aiming to ensure incoming House members only serve one-year terms, Goldman filed a motion for a temporary injunction preventing the State Board of Elections from providing candidates with signed certificates of election. Judge Novak agreed with the AG’s office and denied Goldman’s effort, ruling it was moot because it came four days after the board certified the Nov. 2 elections.

In July, an amended lawsuit from Goldman argued that using the existing legislative districts for this year’s House elections violated the Equal Protection Clause of the 14th Amendment of the U.S. Constitution and sections of the state’s constitution. It also cited the federal court decision Cosner v. Dalton, which made way for House elections in 1981, 1982 and 1983.

With the House of Delegates having off-year elections, there would be contests in 2021, 2022 and 2023 if Goldman is successful.

While Goldman identified himself as a prospective House candidate in his lawsuit, he did not run for office this November after dropping out of the race to be the Democratic lieutenant governor nominee. Goldman told 8News in July that he’s considering a run when the new House districts are implemented.

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