Va. House of Delegates v. Bethune-Hill

139 S.Ct. 1945

VIRGINIA HOUSE OF DELEGATES, et al., Appellants

v.Golden BETHUNE-HILL, et al.

No. 18-281

Supreme Court of the United States.

Argued March 18, 2019

Decided June 17, 2019

Morgan L. Ratner for the United States as amicus curiae, by special leave of the Court, in support of neither party.

Paul D. Clement, Washington, DC, for Appellants.

Toby J. Heytens, Solicitor General, Richmond, VA, for Appellees Virginia State Board of Elections.

Marc E. Elias, Washington, DC, for Appellees Golden Bethune-Hill, et al.

Efrem M. Braden, Katherine L. McKnight, Richard B. Raile, Baker & Hostetler LLP, Washington, DC, Paul D. Clement, Erin E. Murphy, Andrew C. Lawrence, Kirkland & Ellis LLP, Washington, DC, Dalton L. Oldham, Jr., Dalton L. Oldham LLC, Columbia, SC, for Appellants.

Kevin J. Hamilton, Abha Khanna, Ryan Spear, William B. Stafford, Perkins Coie LLP, Seattle, WA, Marc E. Elias, Bruce V. Spiva, Aria C. Branch, Perkins Coie LLP, Washington, DC, for Appellees.

Mark R. Herring, Attorney General, Stephen A. Cobb, Deputy Attorney General, Toby J. Heytens, Solicitor General, Matthew R. McGuire, Principal Deputy, Solicitor General, Michelle S. Kallen, Deputy Solicitor General, Brittany M. Jones, Attorney, Office of the Attorney General, Richmond, VA, for Appellees.

Justice GINSBURG delivered the opinion of the Court.

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 (E.D. Va. 2015), on appeal to this Court, see Bethune-Hillv.Virginia State Bd. of Elections , 580 U.S. ––––, 137 S.Ct. 788, 197 L.Ed.2d 85 (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. ––––, 139 S.Ct. 481, 202 L.Ed.2d 374 (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, 133 S.Ct. 2652, 186 L.Ed.2d 768 (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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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, 133 S.Ct. 2652 (quoting Already, LLC v. Nike, Inc. , 568 U.S. 85, 90–91, 133 S.Ct. 721, 184 L.Ed.2d 553 (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, 117 S.Ct. 1055, 137 L.Ed.2d 170 (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 Wittmanv.Personhuballah , 578 U.S. ––––, –––– – ––––, 136 S.Ct. 1732, 1736–1737, 195 L.Ed.2d 37 (2016). 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. ––––, 136 S.Ct. 1732, 195 L.Ed.2d 37 ; Diamond v. Charles , 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (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, 106 S.Ct. 1697. 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, 133 S.Ct. 2652. 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 misconduct proceedings]." Va. Code Ann. § 2.2–507(A) (2017).²

Virginia has thus chosen to speak as a sovereign entity with a single voice. In this regard, the State has adopted an approach resembling that of the Federal Government, which "centraliz[es]" the decision whether to seek certiorari by "reserving litigation in this Court to the Attorney General and the Solicitor General." United States v. Providence Journal Co. , 485 U.S. 693, 706, 108 S.Ct. 1502, 99 L.Ed.2d 785 (1988) (dismissing a writ of certiorari sought by a special prosecutor without authorization from the Solicitor General); see 28 U.S. C. § 518(a) ; 28 CFR § 0.20(a) (2018). Virginia, had it so chosen, could have authorized the House to litigate on the State's behalf, either generally or in a defined class of cases. Hollingsworth , 570 U.S. at 710, 133 S.Ct. 2652. Some States have done just that. Indiana, for example, empowers "[t]he House of Representatives and Senate of the Indiana General Assembly ... to employ attorneys other than the Attorney General to defend any law enacted creating legislative or congressional districts for the State of Indiana." Ind. Code § 2–3–8–1 (2011). But the choice belongs to Virginia, and the House's argument that it has authority to represent the State's interests is foreclosed by the State's contrary decision.

The House observes that Virginia state courts have permitted it to intervene to defend legislation. But the sole case the House cites on this point— Vesilind v. Virginia State Bd. of Elections , 295 Va. 427, 813 S. E. 2d 739 (2018) —does not bear the weight the House would place upon it. In Vesilind , the House intervened in support of defendants in the trial court, and continued to defend the trial court's favorable judgment on appeal. Id., at 433–434, 813 S. E. 2d at 742. The House's participation in Vesilind thus 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...