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7/29/2019 Little v. Virginia State Board of Elections final opinion
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Virginia:
In the Circuit Court of the City of Richmond, John Marshall
Courts Building
JENNIFER LITTLE, an Individual, )
JAMES MINOR III, an Individual, )CHARLES CUTHBERT, an Individual, )
JANE VAN OSTERN, an Individual, )
JOHN BRUCE BEAVERS, an Individual,)
and CHRISTINA LEE, an Individual, )
)
Plaintiffs, )
)
v. ) Case No.: CL11-5253
)
VIRGINIA STATE BOARD OF )
ELECTIONS, CHARLES JUDD, )Chairman, KIMBERLY BOWERS, Vice- )
Chairwoman, DON PALMER, Secretary, )
ROBERT F. McDONNELL, Governor of )
Virginia, BILL BOLLING, Lieutenant )
Governor of Virginia, KENNETH T. )
CUCCINELLI II, Attorney General of )
Virginia, )
)
Defendants. )
)OPINION AND ORDER
I. BACKGROUND
The Plaintiffs filed suit against the Defendants on November 18, 2011 and requested the
Court, inter alia, (1) to declare, pursuant to Code 8.01-184, that Virginias currently enacted
congressional reapportionment plan, id. 24.2-302.1, is unconstitutional, (2) to enjoin, pursuant
to Code 8.01-620, the Defendants from calling, holding, supervising, or certifying any further
elections under this plan, and (3) to order into effect a new plan in time for the 2012
congressional elections. Compl. at 7-8. On January 12, 2012, the parties appeared by counsel
for argument on the Defendants Motion to Dismiss and Plea in Bar of Sovereign Immunity,
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which the Court denied and overruled, respectively, in its January 24, 2012 Opinion and Order.
Little v. Va. State Bd. of Elections, No. CL11-5253, slip op. at 25 (Va. Cir. Ct. Jan. 24, 2012).
The Defendants subsequently filed a Petition for a Writ of Prohibition to this Court, a Petition for
Appeal, an Application for Expedited Review, and an Emergency Motion for Stay with the
Supreme Court of Virginia on January 26, 2012. The Supreme Court denied the Defendants
requested relief in two unpublished Orders issued on January 31, 2012, and the matter returned
to this Court for argument on the Plaintiffs Motion for Partial Summary Judgment and the
Defendants Cross-Motion for Summary Judgment.
II.
ANALYSIS
a. The legal standard for summary judgmentThe Supreme Court of Virginia has repeatedly held that summary judgment is a harsh
remedy that a trial court may appropriately grant in cases in which no material facts are
legitimately in dispute. Stockbridge v. Gemini Air Cargo, Inc., 269 Va. 609, 618, 611 S.E.2d
600, 604 (2005); Thurmond v. Prince William Profl Baseball Club, Inc., 265 Va. 59, 64, 574
S.E.2d 246, 250 (2003); Majorana v. Crown Cent. Petroleum Corp., 260 Va. 521, 525, 539
S.E.2d 426, 428 (2000); Smith v. Smith, 254 Va. 99, 103, 487 S.E.2d 212, 215 (1997); Slone v.
Gen. Motors Corp., 249 Va. 520, 522, 457 S.E.2d 51, 52 (1995); Turner v. Lotts, 244 Va. 554,
556, 422 S.E.2d 765, 766 (1992). Thus, if the evidence is conflicting on a material point or if
reasonable persons may draw different conclusions from the evidence, summary judgment is not
appropriate. Fultz v. Delhaize Am., Inc., 278 Va. 84, 88, 677 S.E.2d 272, 274 (2009) (citation
omitted). In considering a motion for summary judgment, a trial court must adopt those
inferences from the facts that are most favorable to the nonmoving party, unless the inferences
are forced, strained, or contrary to reason. Id. (citations omitted). If after reviewing the
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pleadings and the admissions thereto the Court determines that the moving party is entitled to
judgment, the [C]ourt shall enter judgment in that partys favor. VA.SUP.CT.R.3:20. Here,
the parties agree that there are no facts in dispute and that the question of whether the General
Assemblys failure to reapportion Virginias congressional districts in 2011, the year following
the federal decennial census, is a bar to its doing so in 2012 is purely a legal one of first
impression1
that is ripe for judgment.
b. The Plaintiffs continue to have standing to bring this action, and thismatter is still ripe for decision and is not moot.
The Defendants maintain that [n]ow that an act with equal lines has passed, Plaintiffs
lack standing to challenge the enactment because they have not been injured by the failure to
redistrict in 2011 in any way that sets them apart from the interest of the general public in seeing
that the laws are enforced. Defs. Supplemental Resp. at 2 (citations omitted). Moreover, they
assert that [b]ecause Va. Code Ann. 24.2-302.1 has been repealed, no live controversy exists
over its constitutionality. Id. at 4.
In its January 24, 2012 Opinion and Order, the Court found that the Plaintiffs have
standing to bring this action and that this matter is ripe for decision and is not moot. These
dispositions have not changed because the General Assembly enacted and the Governor signed
legislation to reapportion Virginias congressional districts. As the Plaintiffs correctly note,
[U]nless and until Virginia receives Section 5 preclearance of its purported new redistricting
plan from the Attorney General or the federal court in Washington D.C., Virginias currently
malapportioned districts remain in effect. Pls. Resp. to Amici Curiaes Br. in Supp. of Defs.
Cross-Mot. for Summ. J. at 3 n.1. Thus, any injury or hardship to the Plaintiffs will not be cured
1Since the Constitution of Virginias recent revision in 1971, the General Assembly, until 2011, has never failed to
reapportion Virginias electoral districts in the year following the federal decennial census, even if some of these
plans subsequently failed constitutional muster.
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until and unless the appropriate authorities preclear this plan. Likewise, because the Plaintiffs
are residents of and qualified voters in the congressional districts alleged to be unconstitutionally
apportioned, they have standing to bring this action. And given that the question to be resolved
by the Court is whether the General Assembly forfeited its authority to reapportion Virginias
congressional districts by its failure to do so in 2011, this matter is not rendered moot even if the
plan is precleared. See Defs. Cross-Mot. for Summ. J. at 3 (This moots Plaintiffs claims
unless this Court rules that the General Assembly has been divested of power to redistrict in
2012.).
c. The word, shall, in Article II, Section 6, of the Constitution ofVirginia speaks in mandatory, not directory, terms, and an Opinion of
the Attorney General issued not more than nine months ago affirms
and is consistent with this finding.
The Court found in its January 24, 2012 Opinion and Order that the word shall in
Article II, Section 6, of the Constitution of Virginia speaks in mandatory, not directory, terms.
See 1A.E.DICK HOWARD,COMMENTARIES ON THE CONSTITUTION OF VIRGINIA 417 (Univ. Press
of Va. ed., 1974) (Should the Assembly fail to reapportion itself in 1981, it will have violated
the constitutional mandate) (emphasis added) (footnote omitted). Since that time, the Court has
become aware of an Opinion issued by the Attorney General in 2011 that speaks to precisely this
issue. See Op. Va. Atty Gen., 2011 Va. AG LEXIS 36 (June 22, 2011).
In that Opinion, the County Attorney of Wise County inquired of the Attorney General
as to the status of voting districts in [the] County in light of the fact that the Wise County Board
of Supervisors has not adopted a reapportionment plan following the 2010 decennial census. Id.
at *1. The Attorney General responded that Article VII, 5 of the Virginia Constitution
mandate[s] that the Board take affirmative action to reapportion the magisterial districts for
Wise County in this tenth year since the last reapportionment using the most recent decennial
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population figures. Id. (emphasis added). Article VII, Section 5, provides, in relevant part:
[T]he governing body of any county, city, or town shall in 1971 and every ten years
thereafter reapportion the representation in the governing body among the districts in a
manner provided by law. VA.CONST.art. VII, 5 (emphasis added).
In interpreting this constitutional provision, the Attorney General determined that [t]he
use of the word shall in the Constitution generally indicates that the procedures are intended
to be mandatory, rather than permissive or directive. Op. Va. Atty Gen., 2011 Va. AG LEXIS
36, at *4 (June 22, 2011) (emphasis added) (footnote omitted). Furthermore, the Attorney
General opined that
[t]he language in Article VII, 5 plainly and unambiguouslymandates that the
governing body of any county, city or town whose members are elected by district
shall in 1971 and every ten years thereafter reapportion the representation inthe governing body among the districts in a manner provided by law.
Id. (emphasis added).
The language contained in Article VII, Section 5, of the Constitution is strikingly similar
to that used in Article II, Section 6: The General Assembly shall reapportion the
Commonwealth into electoral districts in the year 2011 and every ten years thereafter. VA.
CONST.art. II, 6 (emphasis added). Both constitutional provisions employ the word shall,
both mandate that reapportionment legislation be enacted in the year following the federal
decennial census, and both mandate that this be accomplished by a governing body. Yet, despite
these parallels, the Attorney General, in his pleadings and at argument in this case, has
consistently asserted that the word shall in Article II, Section 6, speaks in directory, not
mandatory, terms. See, e.g., Defs. Br. in Supp. of Mot. to Dismiss 6; Defs. Supplemental Br.
in Supp. of Mot. to Dismiss at 4-6; Defs. Supplemental Resp. at 5-6.
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This assertion entirely contradicts the Attorney Generals Opinion, issued mere months
before, that [t]he use of the word shall in the Constitution plainly and unambiguously
mandates that the governing body shall in 1971 and every ten years thereafter
reapportion the representation in the governing body. Op. Va. Atty Gen., 2011 Va. AG
LEXIS 36, at *4 (June 22, 2011) (emphasis added). The Court acknowledges that Article II,
Section 6, speaks to the reapportionment of state and federal electoral districts by the General
Assembly and that Article VII, Section 5, speaks to the reapportionment of local electoral
districts by a local governing body. This disparity is purely technical because, clearly, the
Constitution does not speak one way about a local governing body and another way about the
General Assembly. The substance remains the same: the word shall in Article II, Section 6,
and Article VII, Section 5, speaks in mandatory, not directory, terms. The Court found as such
in its January 24, 2012 Opinion and Order, and the Attorney General did as well in his June 22,
2011 Opinion.
d. Article II, Section 6, of the Constitution of Virginia mandates that theGeneral Assembly enact decennial reapportionment legislation in
2011, but does not foreclose it from enacting such legislation in 2012.
The Plaintiffs aver that because the word, shall, in Article II, Section 6, of the
Constitution of Virginia speaks in mandatory, not directory, terms, the General Assembly was
constitutionally required to reapportion Virginia into new electoral districts in the year 2011,
and it has no authority to reapportion in 2012. Pls. Br. in Supp. of Mot. for Partial Summ. J. at
4. Furthermore, as to the 2004 amendments to Article II, Section 6, the Plaintiffs maintain that
by replacing 1971 with 2011, the General Assembly was required to enact new electoral
districts in 2011 and cannot enact them in 2012. Id. at 5. They also argue that [b]y including
decennial multiple times in the [] amendments , the Virginia voters and the General
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Assembly again made it clear that the General Assemblys authority to enact electoral districts is
limited to 2011 and every ten years thereafter. Id. at 6.
The Defendants, however, assert that the General Assembly had and has the power to
redistrict in 2012, Defs. Supplemental Resp. at 6, and that these amendments did not foreclose
the Assembly from enacting decennial reapportionment legislation in 2012; rather, for example,
[t]he added word[, decennial,] can have no purpose or effect except to make only decennial[,
not mid-decade,] redistricting effective immediately, id. at 8 (emphasis added).
The Constitution of Virginia dictates that [t]he authority of the General Assembly shall
extend to all subjects of legislation not herein forbidden or restricted; and a specific grant of
authority in this Constitution upon a subject shall not work a restriction of its authority upon the
same or any other subject. VA. CONST. art. IV, 14. The Plaintiffs claim that the General
Assembly has exceeded its powers and that a statute is unconstitutional always presents a
question for serious consideration. Harrison v. Day, 201 Va. 386, 396, 111 S.E.2d 504, 511
(1959). Unlike the U.S. Constitution, the Constitution of Virginia is not a grant of legislative
powers to the General Assembly, but is a restraining instrument only, and the legislative
powers of the General Assembly are without limit. Id.; see Strawberry Hill Land Corp. v.
Starbuck, 124 Va. 71, 77, 97 S.E. 362, 364 (1918) ([T]he State Constitution is not a grant of
power, but only the restriction of powers otherwise practically unlimited, that, except so far as
restrained by the Constitution, the legislature has plenary power, and that every fair doubt must
be resolved in favor of the constitutionality of an act of the General Assembly.) (citations
omitted).
Every presumption, therefore, is to be made in favor of the constitutionality of a
statute, and it will never be declared to be unconstitutional unless it is plainly andclearly so. If any reasonable doubt exists as to its constitutionality, the act will be
upheld. To doubt is to affirm. The mere passage of a statute is an affirmance by
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the General Assembly of its constitutional power to adopt it, and the case must be
plain indeed before a court will declare a statute null and void.
Harrison, 201 Va. at 396-97, 111 S.E.2d at 511. The Supreme Court of Virginia has repeatedly
announced [t]hese principles from a very early date. Id. (citations omitted).
Among the powers of the General Assembly expressly recognized by the U.S. and
Virginia Constitutions is the authority to reapportion Virginias electoral districts. U.S. CONST.
art. I, 4, cl. 1 (The Times, Places and Manner of holding Elections for Representatives,
shall be prescribed in each State by the Legislature thereof); VA. CONST. art. II, 4 (The
General Assembly shall regulate the time, place, manner, conduct, and administration of
primary, general, and special elections); id. art. II, 6 (Members of the House of
Representatives of the United States shall be elected from electoral districts established by the
General Assembly.). The Court is unable construe Article II, Section 6, as cabining the General
Assemblys authority to enact decennial reapportionment legislation to 2011 and foreclosing the
enactment of such legislation in 2012. Moreover, the 2004 amendments to this provision,
specifically the addition of the word, decennial, and the replacement of the date in a section
containing two-hundred-fifty-one words, do not support a finding that these revisions divested
the General Assembly of its authority to enact decennial reapportionment legislation in 2012
after it failed to do so in 2011. The Defendants correctly argue, for example, that the word,
decennial, that was inserted in the second paragraph of Article II, Section 6, underscores the
immediate effect of decennial, not mid-decade, reapportionment legislation.2
Defs.
Supplemental Resp. at 8. Compare VA. CONST. art. II, 6 (Any such decennial
reapportionment law shall take effect immediately and not be subject to the limitations contained
2Although the Court distinguishes decennial and mid-decade reapportionment legislation, as only the former is at
issue here, the Court does not decide whether the General Assembly may constitutionally enact the latter.
Therefore, it is of no note that [a]s a matter of historical practice, the General Assembly can and has redistricted in
non-decennial years. Defs. Supplemental Resp. at 6.
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in Article IV, Section 13, of this Constitution.) (emphasis added), with id. art. IV, 13 (All
laws enacted at a regular session shall take effect on the first day of July following the
adjournment of the session of the General Assembly at which it has been enacted.) (emphasis
added).
Furthermore, Article IV, Section 14, Powers of General Assembly; limitations,
contains twenty cases curbing the General Assemblys authority to enact legislation, specifically,
any local, special, or private law. Id. art. IV, 14 (The General Assembly shall not enact
). Likewise, Article I, Section 16, prohibits the General Assembly from
prescrib[ing] any religious test whatever, or confer[ring] any peculiar privilegesor advantages on any sect or denomination, or pass[ing] any law requiring orauthorizing any religious society, or the people of any district within this
Commonwealth, to levy on themselves or others, any tax for the erection or repair
of any house of public worship, or for the support of any church or ministry.
Id. art. I, 16 (And the General Assembly shall not prescribe , [] confer , or pass ).
Similar phrasing is found in Article I, Sections 9, 11, and 12, Article IV, Section 16, and Article
VII, Section 10(b). Although the Court is not inclined to routinely find that the General
Assemblys authority to enact legislation is not cabined where such language is not present, the
fact that seven constitutional provisions include this language weighs against a finding that
Article II, Section 6, which lacks this phrasing, is restrictive. If the ratifiers and the framers of
the Constitution explicitly intended to foreclose the General Assembly from enacting decennial
reapportionment legislation in 2012, then they would have included language to this effect. See
Pine v. Commonwealth, 121 Va. 812, 827, 93 S.E. 652, 656 (1917) (If the [constitutional]
convention had desired to restrain the legislature in this matter, we are satisfied it would have
done so in express terms. Certainly we are unwilling to imply such restraint. Generally, when
the convention has desired to place a restraint upon the legislature, it has done so expressly, as by
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providing that the General Assembly shallnotcharter a church, pass a bill of attainder, ex post
facto law, law impairing the obligation of a contract, applying a religious test, authorizing a
lottery or the like.) (emphasis added).
Because they did not, the Court is constrained to adhere to the plain meaning of Article
II, Section 6, which, although establishing the mandate that the General Assembly may not
abstain from reapportioning Virginias electoral districts, does not bar the Assembly from
enacting decennial reapportionment legislation in 2012. See Dean v. Paolicelli, 194 Va. 219,
226, 72 S.E.2d 506, 511 (1952) (The constitution must be viewed and construed as a whole, and
every section, phrase and word given effect and harmonized if possible.) (citations omitted).
Consequently, the Court rejects both parties contention that because it found that the word,
shall, in Article II, Section 6, speaks in mandatory, not directory, terms, then it necessarily also
determined that the General Assembly forfeited its constitutional responsibility to reapportion
Virginias congressional districts. In fact, until this writing, the Court expressly refrained from
deciding this question, in part, because, unlike other provisions in the Constitution, Article II,
Section 6, does not speak to the consequences of the General Assemblys failure to reapportion
at the constitutionally designated time. Cf. VA. CONST. art. V, 6(b) (During a regular or
special session, the Governor shall have seven days in which to act on the bill after it is presented
to him and to exercise one of the three options set out below. If the Governor does not act on the
bill, it shall become law without his signature.).
There are two mandates in Article II, Section 6. They are, respectively, to reapportion
and to do so in the year 2011 and every ten years thereafter. Id. art. II, 6. The Court must,
therefore, ascertain the implied intendment in respect of the first mandate in the event,
uncontemplated by the framers [and the ratifiers], that the [General Assembly] does not act at the
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constitutionally specified time. Lamson v. Secy of the Commonwealth, 341 Mass. 264, 269,
168 N.E.2d 480, 483 (1960). The Court finds that the first mandate is fundamental; it is devised
to secure a Virginians constitutional right to the equal apportionment of the Commonwealths
electoral districts, and the implication is that the duty and the power to act under [this mandate]
continue, pending a succeeding enumeration, until the power is exercised and discharged. Id.
(citations omitted); see also Selzer v. Synhorst, 253 Iowa 936, 952, 113 N.W.2d 724, 733 (1962)
(A failure to act does not bar subsequent legislatures from acting. The power is a continuing
one until the duty is performed.); Harris v. Shanahan, 192 Kan. 183, 213, 387 P.2d 771, 795
(1963) ([T]he duty to properly apportion legislative districts is a continuing one, imposed by
constitutional mandate upon the legislature, not withstanding the failure of any previous session
to make such a lawful apportionment); State v. Weatherill, 125 Minn. 336, 340-41, 147 N.W.
105, 106 (1914) (The purpose and object in view is the same, namely, to secure such
rearrangement of legislative districts as will extend equal representation to all parts of the state.
And the theory that the Constitution imposes that as a duty and not as a mere prohibition against
reapportionment at some time other than at the first session after a census, seems most consistent
with the manifest purpose to be attained.); Opinion to the Governor, 95 R.I. 109, 121, 185 A.2d
111, 117 (1962) ([W]e agree with those courts which have held that legislative inaction as to the
correction of malapportionment casts the continuing burden upon successive legislatures to
accomplish such a correction of the malapportionment.).
The patent purpose of Article II, Section 6, is for the General Assemblys prompt
reapportionment of Virginias electoral districts following the federal decennial census so as to
be in force for impending elections. This purpose would be thwarted by a construction that
would permit only one session of the General Assembly to enact decennial reapportionment
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legislation and foreclose the next session from enacting such legislation. However, this purpose
would also be thwarted by a construction that would permit, without judicial intervention, the
General Assembly to reapportion at the time of its choosing. The Court is unable to affirm such
a cavalier approach to reapportionment, especially when doing so would contravene a
constitutional mandate and jeopardize a Virginians constitutional right to equal apportionment.
Rather, in order to effectuate the purpose of Article II, Section 6, the present session of
the General Assembly has an affirmative and continuing obligation to timely correct the
constitutional failings of the preceding session and to enact decennial reapportionment
legislation. See 1HOWARD, supra, at 417 (Assuming no reapportionment and no suit to correct
the situation, the next Assembly would have the duty of rearranging districts thrust upon it.)
(footnote omitted). Simply put, there comes a time when a constitutional mandate is not
promptly discharged; when the General Assembly has waited too long to act and when the Court
must compel it to do so.3
Because the General Assembly has already acted, the possible remedy
issued by the Court will have no effect.
If the Court imposes its own reapportionment plan after one was enacted by the General
Assembly, signed into law by the Governor, and submitted to the U.S. Department of Justice and
the U.S. District Court for the District of Columbia for preclearance, then the Plaintiffs would be
substantially prejudiced. Specifically, they would be precluded from exercis[ing] their rights to
participate in the election of their congressional representatives, Pls. Resp. to Defs. Cross-
3
Because the Court has found that the General Assembly is not foreclosed from enacting decennial reapportionmentlegislation in 2012, whether a Virginia state court may constitutionally reapportion Virginias electoral districts in
light of the Assemblys failure to timely do so is not decided here. In fact, Virginia jurisprudence suggests that the
appropriate remedy is an Order directing the General Assembly to act. See, e.g., West v. Gilmore, No. CL01-84,
2002 Va. Cir. LEXIS 37, at *80 (Cir. Ct. Mar. 10, 2002) (It is further ADJUDGED, ORDERED, AND DECREED
that Defendants are enjoined from conducting any election of any persons as a representative from any presently
enacted electoral district to serve as a member of the Virginia House of Delegates or the Senate of Virginia until the
General Assembly of Virginia enacts and the Governor signs new redistricting statutes for the House of Delegates
and the Senate Districts that abide by all of the requirements of the Constitution of the United States and
Constitution of Virginia and the other laws of the Commonwealth.).
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Mot. for Summ. J. at 11, because a reapportionment plan fashioned by the Court is subject to the
same preclearance review as the plan enacted by the General Assembly, Branch v. Smith, 538
U.S. 254, 262 (2003). In fact, given that the General Assemblys plan has been submitted for
preclearance and will be approved, if at all, prior to the submission of the Courts plan,
intervention by the Court at this time will only have the effect of prolonging the electoral vacuity
within which the Plaintiffs find themselves.
III. CONCLUSION
For the reasons previously stated, the Court GRANTS the Defendants Cross-Motion for
Summary Judgment, DENIES the Plaintiffs Motion for Partial Summary Judgment,
4
and
DISMISSES WITH PREJUDICE the Plaintiffs Complaint.
The Court waives the parties endorsement of this Order pursuant to Rule 1:13 of the
Supreme Court of Virginia.
The Clerk is directed to forward a certified copy of this Order to the parties.
IT IS SO ORDERED.
ENTERED:___/___/___ _________________________________
Richard D. Taylor, Jr., Judge
4The Plaintiffs also maintain that [t]he General Assembly waived its authority, and ignored its constitutional
obligations, when it failed to completeand affirmatively abandonedredistricting before the new year. Pls.
Resp. to Defs. Cross-Mot. for Summ. J. at 14 (citation omitted). Because waiver may not be raised to bar the
government from exercising its governmental functions, Brunty v. Smith, 22 Va. App. 191, 196 n.5, 468 S.E.2d
161, 164 n.4 (Ct. App. 1996), the Court rejects the Plaintiffs argument.