Federal appeals court hears oral arguments in suit to force 2022 election

A three judge panel of the United States Fourth Circuit Court of Appeals has heard arguments in a case that could force the state of Virginia to run elections for the House of Delegates this year, and then again in 2023. Richmond attorney Paul Goldman has argued those elections in 2021 are unconstitutional because the districts are based on Census data from 2010, and he sued the state Board of Elections. 

However, the 40-minute session largely dealt with procedural issues such as whether Goldman has the legal standing to bring the case forward or whether the appeals court was the appropriate venue. (hear the arguments on Youtube

Andrew Ferguson is the Solicitor General for Virginia, and he inherited the case from the previous administration. 

“The plaintiff in this case contends that Virginia broke the law when it failed to hold the 2021 election on the basis of Census data that did not exist when the electoral process began,” Ferguson said. “We strongly disagree, but the question before the court today is whether it has Article 3 jurisdiction to decide this case at all.”

Article 3 refers to the U.S. Constitution which lays out how the nation’s courts systems should work. Ferguson argued that Goldman could not demonstrate how he was personally harmed by the elections. Last week, he filed a motion to return the case back to a lower court in order to get a ruling on that issue before taking up Goldman’s underlying claim. Ferguson argued the court should not even weigh in on what is referred to as a “sovereign authority” claim. 

“I think that the reason that sovereign immunity shouldn’t be addressed before determining standing is that if the court were to issue an opinion on sovereign immunity but subsequently determined there had never been any standing in this case, that sovereign immunity opinion is effectively an advisory opinion because the court never had jurisdiction to issue it in the first place,” Ferguson said. 

After a long and legally nuanced discussion about this issue, Goldman was asked to go ahead and make his argument which is built upon a 1981 federal case called Cosner v. Dalton that forced Virginia to hold House of Delegates’ elections in 1982. Goldman argued that the current districts are not balanced by population, a violation of the “one-person, one-vote principle.” 

“I am asking and am here for an election in 2022,” Goldman said. “They say there won’t be an election in 2022. I want to run in 2022 and the state says they’re not going to hold an election in 2022. I say Cosner says I have a right to run in 2022. They say it doesn’t.” 

Goldman said the legal remedy should be a new election to ensure that people are properly represented as is their Constitutional right. But he said his standing is based on being a potential candidate. 

“I gotta wait until 2024 before my new district kicks in,” Goldman said. “I am still represented by the people picked in the old districts and that’s the harm, that’s why you can’t do it. That’s the unusual circumstance in this case.” 

Goldman cited data that shows the imbalance. 

“There’s one district that’s got 130,000 people in it and there’s another district with 67,000,” Goldman said, “They propose that doesn’t change until 2024. That blatantly unconstitutional and I’m in this courtroom today to try to get justice,” Goldman said

In rebuttal, Ferguson continued to press on the question of Goldman’s legal standing, but said the Commonwealth would not be afraid to argue against his claims.

“If the courts conclude that Mr. Goldman has standing to maintain his claim, we will vigorously defend the constitutionality of the 2021 election,” Ferguson said. “We do not think the 14th amendment requires states to reapportion on the basis of Census data that don’t exist when the electoral process has begun.”

The three judges will take the matter under advisement and will issue an opinion at a later date. For more on the topic:

Before you go: The time to write and research of this article is covered by paid subscribers to Charlottesville Community Engagement. In fact, this particular installment comes from the March 9, 2022 edition of the program. To ensure this research can be sustained, please consider becoming a paid subscriber or contributing monthly through Patreon.

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