The result of our two year legal effort to enforce the Virginia constitutional mandate that every legislative district in the Commonwealth be compact did not succeed in the trial court. After a two day trial earlier in the month, on March 31 Circuit Court Judge W. Reilly Marchant issued a ruling on Vesilind v. Virginia Board of Elections upholding the constitutionality of 11 state legislative districts.
Looking forward, it will now be up to the Supreme Court to make the ultimate decision in this case. When studying our trial judge’s opinion, one could easily believe until the very end that we would prevail. However, even without prevailing there are two very important opinions the trial judge rendered in his decision that will likely prove very helpful to OneVirginia2021’s efforts in future redistricting.
The “Fairly Debatable” Test
The Virginia Supreme Court decided in prior cases that when judging legislative findings of fact and considering the evidence before the court, the standard to be applied is described as the “fairly debatable” test. This is defined to mean that when reasonable and objective individuals in considering the evidence could reach a conclusion supporting either side’s position, the legislature prevails. In part, this derives from a presumption of constitutionality accorded to any bill passed by the legislature, along with the degree of deference the courts give to legislative factual determinations.
The “fairly debatable” standard contrasts with the usual standard for civil cases where, in order to prevail, one side only has to have a “preponderance” of the evidence supporting it, meaning the court (or jury in a jury trial) believes one side has slightly more persuasive evidence than the other. Had this been the acceptable standard in our case, there is little doubt we would have prevailed.
We had expected Judge Marchant to apply the “fairly debatable” test to our case. However, as we detailed our earnest and well-considered effort to remove ambiguity from the concept of political districting compactness, we had expected that our presentation of degradation scores and predominance test (both defined in the following paragraph) would overcome whatever evidence the legislature could produce.
Degradation Scores and The Predominance Test
Degradation scores are calculations comparing the challenged districts to an alternate plan with more compact districts. The predominance test, as was explained during the trial by expert witness Michael McDonald, is the average of three widely used compactness scores. Using that average score, McDonald compared the scores of the existing districts to the alternate districts. For districts receiving a degradation score of 50% or higher, we posited that discretionary factors had overridden compactness.
Dr. McDonald established, by using Maptitude, the same mapping software used by the legislature in 2011, that districts drawn to meet all the United States and Virginia Constitutional requirements had their compactness degraded in the eleven districts we challenged by well-over 50% in every instance (as much as 70% in some) because of the use of discretionary choices by the legislature to draw the lines differently, usually for political reasons. Dr. McDonald then concluded and testified that given this reduction in compactness scores by more than 50%, the discretionary criteria “predominated” over compactness making the districts unconstitutional.
Judge Marchant found that Dr. McDonald’s “testimony and accompanying conclusions do merit serious considerations. …The predominance test and resulting conclusions appear to be relevant, logical, and founded on generally acceptable compactness measurements. …In fact, the Court finds some degree of persuasiveness to both the test and Dr. McDonald’s conclusions.” As I will touch on later, this is one of the two gems for the future.
Experts called by both the Attorney General’s office in the Senate’s defense and by a large national firm (BakerHostettler) in the House’s defense, were critical of Dr. McDonald’s test in various ways, but Judge Marchant was not convinced by their criticisms. In fact, the expert called by the AG’s office even admitted in Judge Marchant’s words that “Dr. McDonald’s new compactness test is one approach to testing compactness.” You may recall that this test and the predominance approach we advanced in this case were novel and never advanced before anywhere in the country.
Even though Judge Marchant disagreed with us, we actually believe that even under the “fairly debatable” test we should have prevailed. There was virtually no evidence that either the House of Delegates or the State Senate gave any priority to compactness as the Virginia Constitution required them to do.
Minimum Compactness
Here is where the opinion gets somewhat difficult to understand. Everyone on the defense side relied almost exclusively on compactness scores found acceptable in two prior Virginia Supreme Court cases and accepted those scores – at the very low end of the measuring scale – as acceptable to meet the constitutional mandate that every district be compact. In our case that meant that our defense was that meeting those scores was equivalent to giving compactness the priority required by the state constitution. We argued those cases did not establish any such score that measured the constitutional requirement for compact districts – and in the second part of the ruling that means so much for the future, Judge Marchant agreed! He wrote that “this Court does not agree that the Supreme Court of Virginia has ever established a constitutionally required minimum compactness score for measuring the priority given to compactness in drawing legislative districts.”
Because there’s no direct evidence that either legislative chamber accorded compactness any priority in drawing the districts, it’s difficult to understand how a hypothetical “reasonable and objective” individual could find for the House or the Senate on the central issue before the Court (which is, as Judge Marchant defined it, “whether the Virginia Legislature gave priority to the constitutionally required criterion of compactness over discretionary criteria in the 2011 redistricting with respect to eleven challenged districts”).
Conclusion
Because we believe there is insufficient evidence to support a conclusion that this priority was given and Dr. McDonald’s test provides persuasive evidence that it was not, we have the basis for our appeal. So while it would have been ideal to win at trial, the trial court did the one thing we absolutely needed it to do. It established a strong factual record in our favor. With those factual findings in place we can make our arguments about the law to the one Court that was always going to have to have the final word on the matter.
Here is the good news from the two positive parts of Judge Marchant’s opinion. The legislature used the low scores approved by the prior Supreme Court cases as a floor that met their constitutional obligations. Judge Marchant took that away. That crutch is no longer available. Alternatively, Dr. McDonald’s test is available to be put before the House and Senate by supportive legislators and a record made as to what the legislature did to degrade compactness from the map presented with highly compact districts. Without being able to facilely rely on these past low scores, the legislature will be in a challenging position as they try to justify creating districts with the degree of diminished compactness as those approved in 2011. These are new weapons that, if employed effectively in future redistricting, might materially improve the end product, or create a record where the districts can be more readily attacked in court.
Though we ultimately lost the major battle in the trial court, we won a couple of significant skirmishes along the way, and we have solid grounds for an appeal. This is not to say that prevailing on appeal won’t be challenging. It will be. However, we believe our chances to prevail are such that we must proceed. We value your ongoing support and will continue to keep you updated on the case’s progress.
Wyatt Durrette is a Director at DurretteCrump PLC
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