- The Washington Times - Monday, January 30, 2012

Virginia Attorney General Kenneth T. Cuccinelli II has appointed one of his Democratic predecessors to argue in a high-profile redistricting lawsuit against the state.

The rather odd situation arose after Richmond City Circuit Court Judge Richard D. Taylor Jr. ruled this month that the state legislature was constitutionally obligated to reapportion the state’s congressional districts in 2011. Lawmakers did not adopt new maps until this month, and Judge Taylor has not yet ruled on whether the obligation to pass new districts in 2011 bars the assembly from reapportioning districts in 2012.

Mr. Cuccinelli’s office claimed the court does not have jurisdiction over the case, and he filed a petition for a “writ of prohibition,” asking the state Supreme Court to stop the lower court from acting because it lacks jurisdiction.

But since it falls to the attorney general to defend courts from legal challenges, Mr. Cuccinelli had to find outside counsel to represent the court whose authority he is challenging.

As a result, Mr. Cuccinelli’s office appointed former Virginia Attorney General Anthony F. “Tony” Troy of the firm Troutman Sanders to argue that the court can rule on the case.

“What I’m doing is representing the interests of the court, which we believe should be separately represented in this manner,” said Mr. Troy, who served as the state’s attorney general from 1977 to 1978. “My job is to point out the court properly exercised its jurisdiction, not necessarily that it reached the proper conclusion.”

The Attorney General’s Office said the state is paying Mr. Troy a fee of $195 per hour for his work.

The state has argued that the judge’s ruling would preclude the General Assembly from drawing the maps at all and violates the Constitution’s separation-of-powers provisions. The plaintiffs in the case, meanwhile, argue that since the maps were not drawn in 2011, the legislature cannot do so until 2021 and argues that a court must draw the new lines.

The Attorney General’s Office is also seeking an appeal of Judge Taylor’s order and a stay of proceedings in the circuit court until the high court rules.

After a months-long impasse last year, the state House and Senate recently passed a new redistricting plan that largely shores up the state’s current incumbents, likely preserving an 8-3 Republican advantage in the state’s congressional delegation. With little fanfare, Gov. Bob McDonnell recently signed into law the new map, which must still be pre-cleared with the U.S. Department of Justice.

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. J. Randy Forbes’ southeastern 4th District. But after retaking control of the upper chamber after the November elections, the GOP quickly muscled through the House version less than two weeks into the 2012 session.

J. Gerald Hebert, an attorney representing the plaintiffs, said a writ of prohibition, is extremely rare and that the case should play out through the normal appellate process.

“That’s how the case should proceed — not by short-circuiting the process,” he said. “I wasn’t surprised in the least by the court’s ruling because it was 100 percent correct.”

Mr. Cuccinelli’s office, however, has cited impending fall elections and deadlines associated with the Voting Rights Act as reasons for going to the state's highest court.

A separate but similar lawsuit over congressional redistricting in Virginia is pending in federal court in Alexandria, with a hearing scheduled for next month.