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Virginia redistricting lawsuit hints of state Senate rifts ahead

- The Washington Times - Sunday, November 20, 2011

A lawsuit filed over congressional redistricting in Virginia suggests likely partisan sniping in the state's upcoming General Assembly session, with Democrats already contesting Republican claims to a Senate majority.

The lawsuit, filed last week in U.S. District Court for the Eastern Division of Virginia in Alexandria, calls for a three-judge panel to draw new lines for Virginia's 11 congressional districts, as state House and Senate leaders remain deadlocked over the issue.

"What would have been preferable and favorable is for the General Assembly to accomplish that task," said state Sen. A. Donald McEachin, Henrico Democrat and newly elected caucus chairman. "Regrettably, the House had to say, 'Our way or the highway' and force this matter into the courts."

House Speaker William J. Howell disagrees.

"We tried to call the Democrats and have them come back prior to the [November] election, [but] they didn't seem to want to do it,'' said Mr. Howell, Stafford Republican, when he announced that the redistricting process would wait until next year.

The Republican-controlled House is pushing a plan that would largely keep intact the districts of the state's 11 congressional incumbents, which critics are calling an "incumbent-protection plan" to help preserve the GOP's 8-3 majority.

Additional wrangling is expected as a result of the November elections that willput 20 Democrats and 20 Republicans in the Virginia Senate — with Republican Lt. Gov. Bill Bolling holding the crucial, tiebreaking vote.

The Senate Democrats' plan creates a second "minority-opportunity" district by decreasing the eligible black voting population to less than 50 percent in Democratic Rep. Robert C. "Bobby" Scott's 3rd District.

The population in Rep. J. Randy Forbes' southeastern 4th District would in turn increase from about 33 percent to slightly more than 50 percent and become the state's sole majority-minority district.

Plaintiffs in the lawsuit include residents from congressional districts 1, 4, 7, 10, and 11, which have become "overpopulated" relative to others based on 2010 census figures. The lawsuit argues they will be deprived of their constitutional rights if the current lines stay in place.

J. Gerald Hebert, one of the attorneys representing the plaintiffs, has worked for both state and national Democrats. But he says the suit is not affiliated with any of the congressional incumbents, Virginia senators or the state Democratic Party.

But the pre-emptive salvo isn't entirely nonpartisan, said Quentin Kidd, a Christopher Newport University professor who helped spearhead a redistricting map-drawing competition for college students this year.

"In some ways, it's kind of a lawsuit in my mind to contend the [notion] of the Republican-controlled General Assembly," he said.

Regardless of who's filing the suit, it's designed to tip the scales toward the Democrats' redistricting plan, he added, since in theory, the General Assembly could just pass the House plan once the regular session begins in January. Republicans control the House, and Mr. Bolling's vote would give the GOP the edge in the Senate.

But exactly what a lieutenant governor can vote on, and when, is under intense scrutiny from both parties.

Mr. Bolling's office says it's relying on a legal opinion issued in the 1990s by A.E. Dick Howard, who oversaw the rewriting of the modern state Constitution in 1971.

That opinion affirms the office's power to break ties on procedural matters, as well as appropriations, budget bills and general bond obligations.

The Senate Democratic caucus, meanwhile, is calling for a power-sharing arrangement. But the GOP has made clear its intention to use Mr. Bolling's vote to govern as a majority party.

"It's a question of fairness," said Senate Majority Leader Richard L. Saslaw, Fairfax Democrat. "The Republicans are trying to overrule the will of the people and claim a majority they did not earn."

Said Mr. McEachin: "The constitution of Virginia is very clear. The organization of the Senate is the prerogative of the elected members of the Senate, and Lt. Gov. Bolling is not a member of the Senate."

Mr. Bolling says the constitution "clearly provides" that the lieutenant governor can cast the tiebreaking vote, and that nothing in the constitution prevents him from voting on organizational issues, such as the crucial task of determining the makeup of committees.

Republicans "earned the right" to serve in the majority based on the 2011 elections and the 2009 election for lieutenant governor, added incoming Senate Majority Leader Thomas K. Norment Jr., James City Republican.

"I find it disappointing that now the leaders of the Senate Democratic caucus have decided to argue over the results," he said.

While Mr. Bolling has the authority to break ties, a majority of the Senate is required for a quorum to do business, which could give Democrats the opportunity to put a wrench in GOP plans if they simply walk out.

"I think all options that are available to our caucus ought to be explored," said Mr. McEachin, adding that the particular tactic might change based on the issue at hand.

"We're looking into it," Mr. Saslaw said. "That's all I can say at this point. We're looking into it."

Said Mr. Kidd: "Both sides have the recipe for disaster in their cookbooks. It's just a question of whether they decide to cook it up."

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