By Ned Oliver
(VM) – A federal judge is urging Virginia Attorney General Mark Herring to issue a formal opinion on the state’s election calendar after U.S. census delays forced members of the General Assembly to run in outdated districts this year.
Herring has steadfastly declined to weigh in despite receiving a formal request for an opinion five months ago from Del. Lee Carter, D-Manassas. The issue, which has been the subject of open speculation among lawmakers for more than a year, is now at the center of a lawsuit that aims to force a new round of House of Delegates elections next year once redrawn districts are finalized.
“Maybe the attorney general wants to opine — he may want to,” said U.S. District Judge David Novak during a hearing Tuesday, suggesting that some clear legal direction from Herring might resolve the need for the lawsuit. “I want him to do his job, but I’m not ordering it.”
The two lawyers from Herring’s office in the hearing, who were representing Gov. Ralph Northam and the Board of Elections in the lawsuit, bristled at Novak’s request, repeatedly calling it “neither here nor there.”
They also defended Herring’s right not to respond in a filing ahead of the hearing, writing that the office “has a longstanding practice of exercising discretion to decline, when appropriate, to respond to requests for official advisory opinions, including requests from legislators.”
Because census data came in late, all 100 members of the House of Delegates are running in districts that were drawn based on 2010 population figures. But a decade of growth in urban areas and shrinking in rural ones has left some districts looking lopsided despite being initially drawn to all contain about 86,000 residents.
In some cases, the differences are extreme. An analysis by the Virginia Public Access Project found District 87 in Loudoun County now contains an extra 40,000 people. On the other side of the coin, eight predominantly rural districts are short at least 10,000 people.
Paul Goldman, a Democratic lawyer and onetime aide to former Gov. Doug Wilder, says the state of affairs has the effect of diluting the power of his vote, which is what prompted him to file the lawsuit in May.
Goldman renewed those arguments in Tuesday’s hearing, but Novak questioned whether Goldman was actually harmed by leaving the current districts in place for full, two-year terms, noting that Goldman’s district lost 900 residents, meaning he would actually be overrepresented in the General Assembly.
But Novak voiced frustration that the attorney general’s office hadn’t raised the issue of Goldman’s standing in their motion to dismiss, which instead focused on the state’s immunity from such lawsuits and whether a federal court had jurisdiction in the case — an argument Novak swiftly dismissed.
Novak did side with the government on one count, dismissing part of Goldman’s claim and excusing Northam and individual members of the board of elections from the suit.
But to decide whether the remainder of the case should go forward, he requested additional arguments on elements dealing with the court’s jurisdiction.
After Novak proposed a three-day deadline for additional filings, the attorney general’s office protested, calling the timing unreasonable.
Novak snapped back: “I wouldn’t be in this position if you had done your job the first time.”
A spokeswoman for Herring, Charlotte Gomer, said in an email that “just because an opinion has not yet been issued doesn’t mean one won’t be issued, and the timeline for processing and responding to an opinion request can vary widely from a few weeks to a few months or longer, depending on the complexity of the subject matter and other factors.”
She also downplayed the significance of attorney general’s opinions, noting that they are only advisory and do not make create new law or change existing law.
Novak’s frustration was not limited to Herring’s office. During the hearing, he urged Goldman, who is representing himself in the lawsuit, to follow court rules. He expressed particular frustration that Goldman had sent a press release about the case to his office. He also took issue with Goldman’s filings, which veered into allusions and allegory involving elephants and the magician Harry Houdini.
“You can’t be sending press releases to my law clerk,” Novak said, and “you can’t be talking about Russians, elephants and Houdini. … You’ve got to take it seriously.”
Novak set another hearing on the case for Nov. 8 — six days after the election.
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