March 18, 2019
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF VIRGINIA No. 18-281.
the 2010 census, Virginia redrew legislative districts for
the State's Senate and House of Delegates. Voters in 12
impacted House districts sued two state agencies and four
election officials (collectively, State Defendants), charging
that the redrawn districts were racially gerrymandered in
violation of the Fourteenth Amendment's Equal Protection
Clause. The House of Delegates and its Speaker (collectively,
the House) intervened as defendants, participating in the
bench trial, on appeal to this Court, and at a second bench
trial, where a three-judge District Court held that 11 of the
districts were unconstitutionally drawn, enjoined Virginia
from conducting elections for those districts before adoption
of a new plan, and gave the General Assembly several months
to adopt that plan. Virginia's Attorney General announced
that the State would not pursue an appeal to this Court. The
House, however, did file an appeal.
The House lacks standing, either to represent the State's
interests or in its own right. Pp. 3-12.
(a) To cross the standing threshold, a litigant must show (1)
a concrete and particularized injury, that (2) is fairly
traceable to the challenged conduct, and (3) is likely to be
redressed by a favorable decision. Hollingsworth v.
Perry, 570 U.S. 693, 704. Standing must be met at every
stage of the litigation, including on appeal. Arizonans
for Official English v. Arizona, 520 U.S. 43, 64. And as
a jurisdictional requirement, standing cannot be waived or
forfeited. To appeal a decision that the primary party does
not challenge, an intervener must independently demonstrate
standing. Wittman v. Personhuballah, 578 U.S.__, __.
(b) The House lacks standing to represent the State's
interests. The State itself had standing to press this
appeal, see Diamond v. Charles, 476 U.S. 54, 62, and
could have designated agents to do so,
Hollingsworth, 570 U.S., at 710. However, the State
did not designate the House to represent its interests here.
Under Virginia law, authority and responsibility for
representing the State's interests in civil litigation
rest exclusively with the State's Attorney General.
Virginia state courts permitted the House to intervene to
defend legislation in Vesilind v. Virginia State Bd. of
Elections, 295 Va. 427, 813 S.E.2d 739, but the
House's participation in Vesilind occurred in
the same defensive posture as did the House's
participation in earlier phases of this case, when the House
did not need to establish standing. Moreover, the House
pointed to nothing in the Vesilind litigation
suggesting that the Virginia courts understood the House to
be representing the interests of the State itself.
Karcher v. May, 484 U.S. 72, distinguished.
Throughout this litigation, the House has purported to
represent only its own interests. The House thus lacks
authority to displace Virginia's Attorney General as the
State's representative. Pp. 4-7.
(c) The House also lacks standing to pursue this appeal in
its own right. This Court has never held that a judicial
decision invalidating a state law as unconstitutional
inflicts a discrete, cognizable injury on each organ of
government that participated in the law's passage.
Virginia's Constitution allocates redistricting authority
to the "General Assembly," of which the House
constitutes only a part. That fact distinguishes this case
from Arizona State Legislature v. Arizona Independent
Redistricting Comm'n, 576 U.S., where Arizona's
House and Senate-acting together-had standing to
challenge the constitutionality of a referendum that gave
redistricting authority exclusively to an independent
commission. The Arizona referendum was also assailed on the
ground that it permanently deprived the legislative
plaintiffs of their role in the redistricting process, while
the order challenged here does not alter the General
Assembly's dominant initiating and ongoing redistricting
role. Coleman v. Miller, 307 U.S. 433, also does not
aid the House here, where the issue is the constitutionality
of a concededly enacted redistricting plan, not the results
of a legislative chamber's poll or the validity of any
counted or uncounted vote. Redrawing district lines indeed
may affect the chamber's membership, but the House as an
institution has no cognizable interest in the identity of its
members. The House has no prerogative to select its own
members. It is a representative body composed of members
chosen by the people. Changes in its membership brought about
by the voting public thus inflict no cognizable injury on the
House. Sixty-seventh Minnesota State Senate v.
Beens, 406 U.S. 187, distinguished. Nor does a court
order causing legisla- tors to seek reelection in districts
different from those they currently represent affect the
House's representational nature. Legislative districts
change frequently, and the Virginia Constitution guards
against representational confusion by providing that
delegates continue to represent the districts that elected
them, even if their reelection campaigns will be waged in
different districts. In short, the State of Virginia would
rather stop than fight on. One House of its bicameral
legislature cannot alone continue the litigation against the
will of its partners in the legislative process. Pp. 7-12.
Appeal dismissed. Reported below: 326 F.Supp.3d 128.
GlNSBURG, J., delivered the opinion of the Court, in which
THOMAS, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined. Alito,
J., filed a dissenting opinion, in which ROBERTS, C. J., and
BREYER and KAVANAUGH, JJ., joined.
Court resolves in this opinion a question of standing to
appeal. In 2011, after the 2010 census, Virginia redrew
legislative districts for the State's Senate and House of
Delegates. Voters in 12 of the impacted House districts sued
two Virginia state agencies and four election officials
(collectively, State Defendants) charging that the redrawn
districts were racially gerrymandered in violation of the
Fourteenth Amendment's Equal Protection Clause. The
Virginia House of Delegates and its Speaker (collectively,
the House) intervened as defendants and carried the laboring
oar in urging the constitutionality of the challenged
districts at a bench trial, see Bethune-Hill v. Virginia
State Bd. of Elections, 141 F.Supp.3d 505 (ED Va. 2015),
on appeal to this Court, see Bethune-Hill v. Virginia
State Bd. of Elections, 580 U.S.___(2017), and at a
second bench trial. In June 2018, after the second bench
trial, a three-judge District Court in the Eastern District
of Virginia, dividing 2 to 1, held that in 11 of the
districts "the [S]tate ha[d] [unconstitutionally] sorted
voters . . . based on the color of their skin."
Bethune-Hill v. Virginia State Bd. of Elections, 326
F.Supp.3d 128, 180 (2018). The court therefore enjoined
Virginia "from conducting any elections . . . for the
office of Delegate ... in the Challenged Districts until a
new redistricting plan is adopted." Id., at
227. Recognizing the General Assembly's
"primary jurisdiction" over redistricting, the
District Court gave the General Assembly approximately four
months to "adop[t] a new redistricting plan that
eliminate[d] the constitutional infirmity."
weeks after the three-judge District Court's ruling,
Virginia's Attorney General announced, both publicly and
in a filing with the District Court, that the State would not
pursue an appeal to this Court. Continuing the litigation,
the Attorney General concluded, "would not be in the
best interest of the Commonwealth or its citizens."
Defendants' Opposition to Intervenor-Defendants'
Motion to Stay Injunction Pending Appeal Under 28 U.S.C.
§1253 in No. 3:14-cv-852 (ED Va.), Doc. 246, p. 1. The
House, however, filed an appeal to this Court, App. to Juris.
Statement 357-358, which the State Defendants moved to
dismiss for want of standing. We postponed probable
jurisdiction, 586 U.S.___(2018), and now grant the State
Defendants' motion. The House, we hold, lacks authority
to displace Virginia's Attorney General as representative
of the State. We further hold that the House, as a single
chamber of a bicameral legislature, has no standing to appeal
the invalidation of the redistricting plan separately from
the State of which it is a part.
reach the merits of a case, an Article III court must have
jurisdiction. "One essential aspect of this requirement
is that any person invoking the power of a federal court must
demonstrate standing to do so." Hollingsworth v.
Perry, 570 U.S. 693, 704 (2013). The three elements of
standing, this Court has reiterated, are (1) a concrete and
particularized injury, that (2) is fairly traceable to the
challenged conduct, and (3) is likely to be redressed by a
favorable decision. Ibid, (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)).
Although rulings on standing often turn on a plaintiff's
stake in initially filing suit, "Article III demands
that an 'actual controversy' persist throughout all
stages of litigation." Hollingsworth, 570 U.S.,
at 705 (quoting Already, LLC v. Nike, Inc., 568 U.S.
85, 90-91 (2013)). The standing requirement therefore
"must be met by persons seeking appellate review, just
as it must be met by persons appearing in courts of first
instance." Arizonans for Official English v.
Arizona, 520 U.S. 43, 64 (1997). As a jurisdictional
requirement, standing to litigate cannot be waived or
forfeited. And when standing is questioned by a court or an
opposing party, the litigant invoking the court's
jurisdiction must do more than simply allege a nonobvious
harm. See Wittman v. Personhuballah, 578 U.S.___,
___(2016) (slip op., at 5-6). To cross the standing
threshold, the litigant must explain how the elements
essential to standing are met.
the District Court, the House participated in both bench
trials as an intervenor in support of the State Defendants.
And in the prior appeal to this Court, the House participated
as an appellee. Because neither role entailed invoking a
court's jurisdiction, it was not previously incumbent on
the House to demonstrate its standing. That situation changed
when the House alone endeavored to appeal from the District
Court's order holding 11 districts unconstitutional,
thereby seeking to invoke this Court's jurisdiction. As
the Court has repeatedly recognized, to appeal a decision
that the primary party does not challenge, an intervenor must
independently demonstrate standing. Wittman, 578
U.S.; Diamond v. Charles, 476 U.S. 54 (1986). We
find unconvincing the House's arguments that it has
standing, either to represent the State's interests or in
its own right.
House urges first that it has standing to represent the
State's interests. Of course, "a State has standing
to defend the constitutionality of its statute."
Id., at 62. No doubt, then, the State itself could
press this appeal. And, as this Court has held, "a State
must be able to designate agents to represent it in federal
court." Hollingsworth, 570 U.S., at 710. So if
the State had designated the House to represent its
interests, and if the House had in fact carried out that
mission, we would agree that the House could stand in for the
State. Neither precondition, however, is met here.
begin with, the House has not identified any legal basis for
its claimed authority to litigate on the State's behalf.
Authority and responsibility for representing the State's
interests in civil litigation, Virginia law prescribes, rest
exclusively with the State's Attorney General:
"All legal service in civil matters for the
Commonwealth, the Governor, and every state department,
institution, division, commission, board, bureau, agency,
entity, official, court, or judge . . . shall be rendered and
performed by the Attorney General, except as provided in this
chapter and except for [certain judicial ...