- The Washington Times - Tuesday, January 24, 2012

A circuit court judge on Tuesday refused to dismiss a lawsuit filed over congressional redistricting in Virginia and shot down a key argument the state and the GOP have used to defend a map recently passed by the legislature.

The lawsuit, brought by six Virginia residents, claims that the General Assembly failed in its constitutional obligations by not reapportioning the state’s 11 congressional districts in 2011, the year after the decennial census.

It was filed against the state Board of Elections, and Republicans Gov. Bob McDonnell, Lt. Gov. Bill Bolling and Attorney General Kenneth T. Cuccinelli II.

The attorney general’s office had pointed to the Virginia Supreme Court to argue that the word “shall” in reference to the assembly’s obligation to draw the lines last year is directory, and not mandatory. The judge, however, disagreed.

“If the Court concurs with the Defendants’ proposition that the word ‘shall’ in Article II, Section 6, is discretionary, then the General Assembly will have limitless discretion to reapportion Virginia’s electoral districts in any year it chooses,” Judge Richard D. Taylor Jr. wrote.

After a months-long impasse last year, both the House and Senate recently passed a plan that largely shores up the state’s current incumbents, likely preserving an 8-3 Republican advantage. Senate Democrats had pushed for a plan that would create a second minority-influence district by decreasing the black population in Democratic Rep. Robert C. “Bobby” Scott’s meandering 3rd District and increasing it in Republican Rep. Randy Forbes’ southeastern 4th District.

Judge Taylor also ruled that the plaintiffs have standing in the case, the matter is ripe, and the doctrines of separation of powers and sovereign immunity do not prevent him from deciding it. But he did not opine on whether the assembly’s failure to complete redistricting in 2011 in accordance with the constitutional mandate would be a bar to exercising that authority in 2012.

Sen. A. Donald McEachin, Henrico Democrat, conceded that the case was far from over, but described the ruling as a “preliminary victory.”

“The circuit court judge rejected the commonwealth’s arguments in trying to throw this out of court,” he said. “It’s sound, it’s reasoned. It’s common sense.”

A spokesman for the attorney general’s office could not be reached for comment.

A similar lawsuit is pending in federal court in Alexandria, with a hearing scheduled for Feb. 10.

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