Professor A. E. Dick Howard, Scholars File Amicus Brief in Virginia Gerrymandering Case

A group of Virginia law professors assembled by University of Virginia Law professor A. E. Dick Howard, the principal drafter of Virginia’s current constitution, filed an amicus brief today with the Supreme Court of Virginia in a gerrymandering case that could attract national attention.

The scholars, who filed in support of petitioners challenging the General Assembly’s 2011 drawing of legislative districts, say the current boundaries violate the Virginia constitution’s requirement that districts be compact. The petitioners' appeal in Vesilind v. Virginia State Board of Elections is being led by OneVirginia2021, a bipartisan organization seeking redistricting reform.

"In requiring that legislative districts be compact, the drafters of Virginia’s constitution understood that requirement to buttress fundamental rights — the right to vote and the right to representation," Howard said.

Before the current appeal, the Circuit Court of the City of Richmond heard evidence in a three-day trial in March, and concluded that while the plaintiffs had met their burden of showing that the legislature did not give priority to the constitutional requirement of compactness, the court nevertheless was constrained to rule for the legislature because the issue was "fairly debatable."

According to reporting in the Richmond Times-Dispatch, despite 600 elections for the Virginia House since 2003, only 19 incumbents have been defeated.

Howard explained that in drawing legislative districts, the General Assembly may take into account such discretionary factors as county or city boundaries, communities of interest and incumbency.

"But the amicus brief argues that constitutional mandates — here, that districts be compact — must be given priority over discretionary factors," he said. "Only by enforcing such constitutional mandates as compactness, contiguity and equality of population can the courts assure Virginia’s citizens that they can hold their representatives accountable for their policy decisions.  The essential dimensions of democratic government are at issue in this case."

In their brief, the amici ask the Supreme Court of Virginia to require the General Assembly to demonstrate that it has used some constitutionally defensible standard in drawing districts. 

"Only then can the court decide whether the action the legislature has taken is fairly debatable and therefore within legislative prerogatives," Howard said.

Howard is joined in support of the petitioners by professors Mark E. Rush of Washington and Lee University, Rebecca Green of William & Mary Law School, and Carl W. Tobias of the University of Richmond School of Law.

Widely acknowledged as an expert in the fields of constitutional law, comparative constitutionalism, and the Supreme Court, Howard is the White Burkett Miller Professor of Law and Public Affairs at the University of Virginia.