Beware of AG’s Bearing Opinions

A week ago, the Senate P&E Committee was given an entertaining lecture by a lawyer from the Attorney General’s office in regard to 2012 legislation to create Virginia’s new congressional districts.

I say “entertaining” because the entire gist of the presentation was that the Assembly could pass a redistricting bill in 2012 — and have it be binding — even though our constitution limits the Assembly by stating that it “shall reapportion in 2011.”

2011, not 2012.

The AG’s position is that “shall” is advisory, not mandatory, and a 2012 redistricting bill is as good as one passed in 2011 — notwithstanding the constitution.  Essentially, the AG’s interpretation would open up Virginia to a permanent moving target in its legislative map, as parties in power could continually create new districts.

The AG’s opinion was scoffed at by some Committee members, including me, who believe that “shall” is a limitation on authority, not a helpful suggestion.  Yesterday, it was formally rejected in an opinion from Circuit Court in Richmond, which spurned the idea that the Assembly has “limitless discretion” to rewrite its maps and stated that “shall ” means “shall” which it came to temporal limitations.

(note my original post erroneously said U.S. District Court)

That decision is not final.  At some point, it will be appealed to the Virginia Supreme Court and, likely, the U.S. Supreme Court.  They will have the final say and I believe their reasoning will be consistent, i.e. that constitutional language is “mandatory,” not advisory.

Until that time, these maps will remain in limbo.  Should the matter be returned to the U.S. District Court, it will have the responsibility to draft the Congressional districts in the failure of the Assembly to do so.

 

This entry was posted in Uncategorized. Bookmark the permalink.
  • Jamie

    I believe the ruling yesterday was by state Circuit judge Richard Taylor. It will be appealed in state court, not federal court. See http://www.washingtontimes.com/news/2012/jan/24/va-judge-denies-motion-dismiss-congressional-redis/.

    The federal case is Lamarca v. Board of Elections, Case No. 11-cv-01255 (E.D. Va. Alexandria) and there is a Feb. 10 hearing on the AG’s motion to dismiss in that case.

    • Chap Petersen

      You’re right Jamie. I corrected the Post. Typing faster than my brain was moving …

  • Charles

    Are you at liberty to say which assistant AG had the thankless task of making the presentation?

  • Tbailsh

    Why aren’t you suggesting the entire GA be fired — they failed to do their constitutionally mandated jobs?