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Virginia House of Delegates v. Bethune-Hill

United States Supreme Court

June 17, 2019

VIRGINIA HOUSE OF DELEGATES, ET AL., APPELLANTS
v.
GOLDEN BETHUNE-HILL, ET AL.

          Argued March 18, 2019

          ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA No. 18-281.

         After 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.

         Held:

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.__, __. Pp. 3-4.
(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.

          OPINION

          GINSBURG JUSTICE

         The 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." Ibid.

         A few 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.[1]

         I

         To 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.

         Before 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.

         II

         A

         The 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.

         To 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 ...

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