Virginia Redistricting Commission Spends a Week Providing Clarification to Map Drawers

After a strategy shift, the Virginia Redistricting Commission spent its two meetings this week discussing guidance from legal teams about how to ensure legal compliance with the Voting Rights Act (VRA), and how to consider political subdivisions, communities of interest, and partisan equity. Republican and Democratic legal teams shared different analyses of how to ensure compliance with section two of the VRA, which requires that districts not dilute the voting power of protected minorities. Democratic legal counsel argued that map drawers must create majority-minority districts where possible including through coalitions of minority groups. Republican counsel said that while creating those districts was permissible and even likely to happen, explicitly instructing the mapdrawers to consider race fell outside the legal criteria under which race can be considered, violating the Equal Protection Clause.

The commission debated the issue for hours across two meetings on Monday and Wednesday and defeated three proposals to say the mapdrawers “shall,” “may,” or “shall provide where practicable,” the majority-minority districts.

Senator Ryan McDougle (R-Hanover) summarized the debate over the “shall” language Monday: “This motion specifically means that we’re going to get sued one way or the other — one counsel is saying we specifically can’t do this, one counsel is saying we specifically have to do this.”

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Commentary: Supreme Court Raised the Bar for Challenge to Georgia Election Law

The Supreme Court’s recent decision in Brnovich v. Democratic National Committee has prompted extensive commentary about the implications for future challenges to election laws under Section 2 of the Voting Rights Act. Litigants arguing that some laws, such as Georgia’s newly enacted SB 202, disproportionately affect racial minorities may have a greater challenge meeting the standard set forth by the court than the standard that some lower courts had been using in recent years.

But while the justices split on a 6-3 vote on whether a pair of Arizona statutes ran afoul of the Act, it voted 6-0 (with three justices not addressing the question) in concluding that Arizona did not act with discriminatory intent. This holding sets the stage for the Justice Department’s recent lawsuit against Georgia, and it offers hints at how district courts and reviewing courts should behave. In short, the Justice Department has an uphill battle.

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U.S. Supreme Court Reinstalls Arizona Ban on Ballot Harvesting as Ballots Hit Mailboxes

Arizona’s 2016 ballot harvesting ban will remain in effect for the 2020 General Election.

The U.S. Supreme Court announced Friday that they would hear Attorney General Mark Brnovich’s appeal against the Democratic National Committee over their challenge to a ban on anyone except a caregiver or immediate family member delivering an early ballot.

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