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Attorney General files brief to throw out election repeat lawsuit

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The office of Attorney General Mark Herring filed a brief last week seeking to throw out a lawsuit arguing the Commonwealth should conduct elections for the House of Delegates again, since the districts vary greatly in population.

In June, Paul Goldman sued the Board of Elections saying the 2021 House of Delegates elections were going to be on out of date districts. Some districts have nearly twice as many people as others. Goldman says that violates the equal protection clause: that one person gets one vote.

The lawsuit, if successful, would accelerate the timeline for a resorting of Virginia’s political order. Wednesday, two experts appointed by Virginia’s Supreme Court as special masters proposed political districts that gave Democrats a slight advantage, while pairing also roughly half of state legislators in the same districts.

The redo could mean that Republicans could lose the House of Delegates, after retaking it this November, although the political data isn't that straightforward.

53 of the 100 seats had a higher Democratic vote share when compared to the 2017 Attorney General election, which the special masters used to gauge partisanship after they redrew the maps. But they also fell below the average performance of a Democratic candidate.

Sean Trende and Bernard Grofman did write that “although Republicans may find it slightly easier to win a majority, Democrats will have a tendency to enjoy larger majorities when they win. But overall, this map is well-balanced, does not unduly favor and party and did not need to be adjusted.”

“We're all entitled to have an election under constitutional districts to the House of Delegates as soon as possible,” said Goldman in an interview. “So as soon as we get the constitutional districts, we need to have an election and that will be 2022.”

The case, before Federal District Court, is currently on appeal before The US Court of Appeals for the Fourth Circuit. Herring's office appealed the case after the judge overseeing the district court case removed a number of defendants from the case, including Governor Ralph Northam, but kept members of the State Board of Elections in their official capacities.

The Attorney General’s office brief was in an appeal lawyers wrote the case should be argued in state rather than Federal Court in order to sue state officials. They also wrote Goldman was disguising his state law claims in federal court, but conceded the case "may raise important questions of Virginia law."

“Mine is based on the equal protection clause of the 14th amendment. They don't seem to be able to comprehend that,” Goldman said. “There is also a very good state constitutional argument that you could make: I’m making the federal constitutional argument.”

They also said Goldman wasn’t harmed in the case, since his district was smaller than the average so he doesn’t have standing to sue. Goldman says that misses the point and his vote still counts for less than others.

“It's not based on the ideal district. It's based on the election that was held in November.”

Herring’s office declined to answer questions on the case, saying they generally don’t comment on pending litigation.

Herrings term though, is wrapping up, and his successor, who is of the opposite party may have to take up the case. A spokesperson for Attorney General-elect Jason Miyares didn’t return a request for comment.

If the case proceeds, and Goldman wins, it wouldn’t be the first time that Virginia has been forced to a repeat election. In 1981, a federal court ruling meant elections in 1981, 1982, and 1983.

This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.

Jahd Khalil is a reporter and producer in Richmond.
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