Page et al v. Virginia State Board of Elections et al

Filing 137

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne, District Judge Liam O'Grady, and U.S. Circuit Judge Allyson K. Duncan on 02/23/2015. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

DAWN PAGE, ^

al.,

Plaintiffs,
Civil Action No.

V.

VIRGINIA STATE

ELECTIONS, ^

BOARD

3:13cv678

OF

al. ,

Defendants.
MEMORANDUM OPINION

This matter is before the Court on the INTERVENOR-DEFENDANTS'

MOTION TO POSTPONE REMEDIAL DEADLINE UNTIL SEPEMBER 1, 2015 (Docket

No. 125).

For the reasons, and to the extent, set forth below, the

motion will be granted.

I.

The Court has found that the 2012 redistricting plan implemented
by the Commonwealth of Virginia violates the Equal Protection Clause
(Memorandum Opinion, Docket No. 109) .

that Memorandum Opinion,

For the reasons set forth in

the Court enjoined the Commonwealth of

Virginia ''from conducting any elections subsequent to 2014 for the
Office of United States Representative until a new redistricting plan
is adopted,"

(Docket No. 110, SI2) .

To implement paragraph 2, the

Virginia General Assembly was enjoined to adopt a new redistricting
plan ''as expeditiously as possible, but no later than April 1, 2015."
(Docket No.

110,

13) .

II.

Citing changes in circumstance since the injunction Order was
entered, the motion filed by the Intervenor-Defendants asks the Court

to modify the deadline date in paragraph 3 of the injunction Order
to require that the new redistricting plan be adopted not later than

September 1, 2015/
Courts have the power ''to modify an injunction in adaptation
to changed circumstances."

106,

114

(1932).

And,

United States v. Swift & Co., 28 6 U.S.

of

course,

"[a]

continuing

decree

of

injunction directed to events to come is subject always to adaptation
as events may shape the need.''

Fed. R. Civ. P. 62(c).

Id.

(citations omitted); see also,

The Defendants recognize as much by asking

for a modification of the deadline, albeit for a lesser period (until
April 15,

2015).

There seems no doubt that circumstances have changed since the
injunction Order was

entered.

First,

the

Intervenor-Defendants

noted their appeal to the Supreme Court of the United States on

October 30, 2014 (Docket No. 115) and the next day they filed their

jurisdictional statement.

At that time, there was pending in the

Supreme Court the case of Alabama Dem. Conf. v. Alabama, No. 13-1138,
(the ''Alabama Case'') which presents some issues the resolution of

^ The Plaintiffs and the Defendants erroneously characterize the
motion as one for a stay of judgment.
We think that is not correct
because the motion seeks not to stay the order of injunction, but
to modify the date by which compliance with its terms is to be
accomplished.

which reasonably can be expected to bear on the resolution of the

appeal in this case.

The Supreme Court heard argument in the Alabama

Case on November 12,

2014.

Then, on December 4, 2014, Plaintiffs filed in the Supreme Court
a MOTION TO DISMISS OR AFFIRM the decision of this Court,

and the

Intervenor-Defendants filed their opposition thereto on December 22,

2014.

Thereupon,

decision.

the MOTION TO DISMISS OR AFFIRM was

ripe for

The Supreme Court distributed the MOTION TO DISMISS OR

AFFIRM for conference on January 9, 2015, but since then has neither

relisted it for conference nor taken any action on it.

And, as the

parties seem to agree, the Supreme Court is holding the appeal in
this case pending disposition of the Alabama Case.
According to the parties, these post-injunction developments

give rise to several possible dispositions.

Plaintiffs'

MOTION TO DISMISS OR AFFIRM,

First, by granting the

the Supreme Court could

issue a summary affirmance of the decision of this Court.

However,

the briefing on the MOTION TO DISMISS OR AFFIRM was completed well
before the January 9,

2015 conference of the Supreme Court and no

summary affirmance has been forthcoming.
a

possible

disposition.

Second,

the

Nonetheless, that remains
Supreme

Court

could

note

jurisdiction, grant review, and affirm the decision of this Court.
Third, the Supreme Court could grant review,

reverse the decision

of this Court, and remand with instructions.

Fourth, the Supreme

Court could remand this case for further proceedings in perspective
of i t s decision in the Alabama Case.

Thus,

Assembly,

the current posture of this

the parties,

case

leaves

the General

and this Court in a quite uncertain,

generally untenable, posture.

and

When all is said, before or by June

30, 2015 (the end of the current term of the Supreme Court), there
likely will be a summary affirmance of the decision of this Court,

a grant of review of the decision of this Court with an ensuing
decision either affirming or reversing our decision, or a remand for
further consideration in light of the decision in the Alabama Case.
Under

these

changed

and

somewhat

unusual

circumstances,

we

conclude that it is wasteful for the General Assembly to devise a

redistricting plan without the views and instructions of the Supreme
Court.

Further,

this Court likely will be called upon to review

whatever redistricting plan would be prepared by April 1, 2015,
proceed with review before the parties and we

To

know the views and

instructions of the Supreme Court would be wasteful of the resources
of the parties and the Court.
We

have considered the Defendants'

claim of harm in the form

of the expense of a special legislative session.

Even if a special

session will be required, that expense is small when measured against
the likely expense of going forward with the case in its current
posture because the parties will incur legal fees and litigation
costs and expenses.

And,

the fee applications in this case teach

that the cost of further litigation will far exceed the projected
cost of a special session of the General Assembly.
convincing

the

make-weight

argument

that

a

interfere with normal governmental operations.
argument is speculative, at best.

Nor do we find

modification

will

And, the "vacancy"

Finally, we find unpersuasive the

contention that a September 1 deadline would be too late because the

new plan should be in effect by January 1, 2016, the day after which

candidates may start collecting signatures.

That argument ignores

the fact that the plan that was found constitutionally wanting was
not adopted by January 1, 2012 and yet elections were held without

a hitch.

In any event, if the redistricting plan submitted under

the modified deadline is not acceptable, the Court can craft a plan
in sufficient time to allow elections to proceed in 2016.
Nor

are

we

persuaded

by

Plaintiffs'

claim

of

prejudice.

Although we agree that the public interest is best served by a prompt
resolution, we think that the interest of all is served by allowing
the parties and the Court to proceed with the benefit of the views
and instruction of the Supreme Court.

Considering all the foregoing, we find that the interest of the

parties,

the interest of the public,

the interest of judicial

efficiency, and the interest in the orderly administration of justice
make it appropriate that the Court respond to this uncertainty of
circumstance by granting the motion to modify the injunction.
Accordingly, a modification will be granted until September 1, 2015

(sixty (60) days after the current Supreme Court term), sixty (60)
days after any summary affirmance or other decision of the Supreme
Court warranting the preparation of a new redistricting plan, or
further ORDER of this Court, whichever first occurs.

Counsel will

be required to apprise this Court of any developments in the Supreme

Court so that appropriate Orders can promptly issue.^
It

is

so ORDERED.

/s/
Allyson K. Duncan
United States Circuit Judge

/s/

Liam O'Grady
United States District Judge

/s/

Robert E.

Payne

Senior United States District Judge

Richmond, Virginia
Date: February 23, 2015

2

Of course, the General Assembly is free to work on redistricting
if it chooses to do so, something that to date does not appear to

have taken place, and then the work can be finished under the revised
deadline after the parties and the Court have guidance from the
Supreme Court.