- The Washington Times - Friday, September 13, 2002

RICHMOND Lawyers for the state urged the Virginia Supreme Court to reverse a judge's ruling that the 2001 legislative-redistricting plan is unconstitutional because of racial gerrymandering.

Attorney General Jerry Kilgore watched from the second row of a packed courtroom yesterday as one of his top deputies, Francis S. Ferguson, argued that Salem Circuit Judge Richard C. Pattisall erred in nullifying new districts drawn by the General Assembly's Republican majority. The Supreme Court put Judge Pattisall's ruling on hold until it could hear the case.

Among other things, the state claimed on appeal that Democrats who challenged the plan sought out a sympathetic judge to hear the case. Mr. Ferguson said the filing of the lawsuit in Salem instead of Richmond "should have raised a red flag" that the plaintiffs were judge-shopping.

The Republican attorney general was more blunt in remarks to reporters after the hearing.

"We believe he was biased from Day One," Mr. Kilgore said of Judge Pattisall, a Democrat who refused to remove himself from the case. Judge Pattisall was denied reappointment by the legislature shortly before he ruled in the redistricting case in March.

Ronald A. Klain, a lawyer for the Democrats, said it made sense to file the lawsuit in Salem because that is the home of one of the defendants, House Majority Leader H. Morgan Griffith.

"When you attack a judge, it shows your arguments are weak," state Sen. Henry Marsh, Richmond Democrat, told reporters outside the courthouse.

Democrats challenged the plan in June 2001. Republicans gained 12 seats in elections held in the new districts in November, increasing their majority to 64 in the 100-seat House. The Senate has not yet held elections in the new districts.

In his ruling, Judge Pattisall said the legislature illegally packed black voters into a few black-majority districts to weaken their influence in adjoining white-majority districts. In doing so, the assembly failed to adhere to traditional principles that districts should be compact and contiguous, he found.

E. Duncan Getchell Jr., a private lawyer representing the state, said there was no evidence that the legislature gave greater weight to race than to partisan considerations, incumbent protection and other factors.

Mr. Klain disagreed, arguing that the Republican majority used census data to split dozens of voting precincts between two districts. The census records racial statistics but not political-party affiliations, he said.

"The court has to look to see whether race is a better explanation than politics," said Pamela Karlan, a Stanford University law professor representing Gov. Mark R. Warner, a Democrat, who wants the new districts invalidated.

The state also said the plaintiffs lacked standing to sue because there is no evidence that any of them live in the three districts Judge Pattisall found were racially gerrymandered. The plaintiffs are two dozen Democratic legislators and 22 other Virginians.

The Supreme Court, which had denied a request by both sides to fast-track the case, is likely to issue a ruling Nov. 1.


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