Wittman v. Personhuballah: Standing and the Virginia Racial Gerrymander

In Wittman v. Personhuballah, decided May 23, 2016, the Supreme Court unanimously dismissed an appeal by Republican members of Congress who had intervened to defend Virginia’s 2012 congressional map against a racial gerrymandering challenge. Writing for an 8-0 Court, Justice Stephen Breyer held that the three remaining intervenors lacked Article III standing because none could show a concrete, redressable injury from the lower court’s ruling. The dismissal left in place a court-drawn remedial map that reshaped several Virginia districts for the 2016 elections.¹

What the Case Was About

Virginia’s Third Congressional District was first drawn in 1992 as a majority-minority district and had been held by Representative Bobby Scott since 1993. After the 2010 census, the Virginia General Assembly redrew the district and raised its Black voting-age population to 56.3 percent.² Critics said that packed Black voters into a single district and diluted their influence elsewhere.

In October 2013, two Third District voters, Gloria Personhuballah and James Farkas, sued the Virginia State Board of Elections in the Eastern District of Virginia. They argued that the legislature had made race the predominant factor in drawing the district without narrowly tailoring the plan to a compelling interest, violating the Equal Protection Clause.¹ Their lawyer, Marc Elias, pointed to a rigid 55 percent Black voting-age population floor the legislature had applied.³

Delegate Chris Jones, who authored the plan, had treated the 55 percent figure as a fixed rule, rejecting proposed changes that would dip below it and acknowledging he had never conducted a racially polarized voting analysis to test whether the threshold was actually required for Voting Rights Act compliance.⁴

The Lower Court Ruling and the Remedial Map

A three-judge panel in the Eastern District of Virginia found the Third District an unconstitutional racial gerrymander and enjoined further elections under the challenged map.⁵ The Supreme Court vacated and remanded once in light of Alabama Legislative Black Caucus v. Alabama, and on remand the panel reached the same conclusion.¹

When the General Assembly missed a September 1, 2015 deadline to adopt a new plan, the court appointed Bernard Grofman of UC Irvine as special master.⁶ Grofman’s remedial maps reduced the Third District’s Black voting-age population from over 56 percent to roughly 42 to 45 percent while adjusting the First, Second, Fourth, and Seventh Districts. The Fourth District absorbed all of Richmond and Petersburg, pushing its Black voting-age population from 31 percent to about 41 percent.⁷ The district court approved the plan on January 7, 2016, and the Supreme Court denied a stay in February.⁸

Who Appealed, and the Standing Problem

Ten Republican members and former members of Congress intervened to defend the original 2012 map, including Randy Forbes, Rob Wittman, Robert Goodlatte, Morgan Griffith, Scott Rigell, Robert Hurt, Dave Brat, Barbara Comstock, Eric Cantor, and Frank Wolf.⁹ Their attorney, Michael Carvin, argued the remedial map would flood their districts with Democratic voters and damage their reelection chances.

By the time the appeal reached the Supreme Court, only three intervenors still claimed standing: Forbes, Wittman, and Brat. Forbes had the sharpest claim. His Fourth District had gone from roughly 48 percent Democratic to about 60 percent Democratic under the remedial plan.¹

The Supreme Court’s Decision

The Court heard argument on March 21, 2016. Justices Kagan and Sotomayor pressed Carvin on whether a desire to be reelected was a “legally recognized interest” or whether his theory amounted to an incumbency protection rule. Carvin responded that the injury had to be “undisputed” and “dramatic,” pointing to Forbes.¹⁰

Then the Forbes claim collapsed. At argument, Carvin told the Court that if the 2013 map were restored, Forbes would drop his Second District campaign and run again in the Fourth. Four days later, on March 25, Forbes’s counsel wrote to the Court to clarify that Forbes intended to seek election in the Second District regardless of the outcome.¹

Applying the standing framework from Lujan v. Defenders of Wildlife, the Court required each intervenor to show an injury in fact, fairly traceable to the challenged conduct and likely to be redressed by a favorable decision, backed by evidence rather than allegation. The Court worked through the three intervenors one by one.

Forbes’s injury was no longer redressable. Because he had committed to running in the Second District no matter what happened to the map, reversing the remedial plan would not undo any harm to him.

Wittman and Brat offered no record evidence that the remedial plan would hurt them. Their briefs focused on the Third and Fourth Districts, neither of which they represented. “The allegation of an injury, without more, is not sufficient to satisfy Article III,” the Court wrote.¹

With no intervenor able to establish standing, the Court dismissed the appeal and never reached the question of whether the 2012 map was unconstitutional.

What Happened to the Map and to Forbes

The dismissal left the court-drawn remedial map in effect, and Virginia used it for the 2016 congressional elections.¹¹

Forbes paid an immediate price for his switch. In the June 14, 2016 Republican primary in the Second District, he faced state Delegate Scott Taylor, a former Navy SEAL who cast him as an outsider who did not live in the district. Forbes outspent Taylor by roughly ten to one and still lost, 53 percent to 41 percent, ending a 26-year career in public office.¹²¹³

Why the Ruling Matters

Because the Court resolved the case on standing, it set no new rule on when race predominates in redistricting. What it did set was a limit on who can carry a redistricting appeal forward. A generalized interest in incumbency protection is not enough. A legislator who does not live in or represent the district whose lines are at issue needs concrete, record-based evidence of particularized harm, not a prediction that reshuffled voters will complicate reelection.

The ruling also enforces the rule that standing must hold throughout the life of a case. Forbes’s choice to run in a different district, communicated to the Court by letter days after oral argument, destroyed the redressability of whatever injury he had once claimed. For future redistricting appeals, the practical takeaway is that intervenors need to tie themselves specifically to the districts they are defending and keep that connection intact until judgment.

One boundary worth noting: Wittman addressed Virginia’s congressional map. The parallel challenge to 12 state House of Delegates districts drawn with the same 55 percent floor was litigated separately as Bethune-Hill v. Virginia State Board of Elections, which the Supreme Court decided on the merits in March 2017.¹⁴

1
Justia. Wittman v. Personhuballah, 578 U.S. ___ (2016)
2
Cornell Law Institute. Wittman v. Personhuballah
3
Courthouse News Service. SCOTUS Questions Standing in VA Redistricting Fight
4
Brennan Center for Justice. Bethune-Hill v. Virginia Board of Elections, Plaintiffs’ Trial Brief
5
vLex. Personhuballah v. Alcorn, Civil No. 3:13-cv-678
6
UC Irvine School of Social Sciences. Bernard Grofman: Redistricting Special Master
7
Roll Call. Special Master Offers Alternative Virginia Congressional Maps
8
SCOTUSblog. Wittman v. Personhuballah
9
Roll Call. Supreme Court Ruling Blocks Republican Redistricting Challenge
10
U.S. Supreme Court. Oral Argument Transcript, Wittman v. Personhuballah
11
University of Richmond Law Review. Virginia Redistricting
12
Politico. Virginia Rep. Forbes Loses Primary
13
Washington Post. Virginia Voters Choose Congressional Candidates in New Districts
14
U.S. Supreme Court. Bethune-Hill v. Virginia State Board of Elections, No. 15-680