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SUPREME COURT OF THE UNITED STATES
_________________
No. 18–281
_________________
VIRGINIA HOUSE OF DELEGATES, et al.,
APPELLANTS
v. GOLDEN BETHUNE-HILL, et al.
on appeal from the united states district
court for the eastern district of virginia
[June 17, 2019]
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 (ED Va. 2015),
on appeal to this Court, see
Bethune-Hill v.
Virginia
State Bd. of Elections, 580 U. S. ___ (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. ___ (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 (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 (1992)). Although rulings on standing often turn
on a plaintiff’s stake in initially filing suit, “Article III
demands that an ‘actual contro- versy’ persist throughout all
stages of litigation.”
Hollingsworth, 570 U. S., at 705
(quoting
Already, LLC v.
Nike, Inc.,
568 U.S.
85, 90–91 (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 (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
Wittman v.
Personhuballah, 578
U. S. ___, ___–___ (2016) (slip op., at 5–6). 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. ___;
Diamond v.
Charles,
476 U.S.
54 (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.
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. 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 (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. 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 has pointed to nothing in the
Virginia courts’ decisions in the
Vesilind litigation
suggesting that the courts understood the House to be representing
the interests of the State itself.
Nonetheless, the House insists, this Court’s
decision in
Karcher v.
May,
484 U.S.
72 (1987), dictates that we treat
Vesilind as
establishing conclusively the House’s authority to litigate on the
State’s behalf. True, in
Karcher, the Court noted a record,
similar to that in
Vesilind, of litigation by state
legislative bodies in state court, and concluded without extensive
explanation that “the New Jersey Legislature had authority under
state law to represent the State’s interests
. . . .” 484 U. S., at 82. Of crucial
significance, however, the Court in
Karcher noted no New
Jersey statutory provision akin to Virginia’s law vesting the
Attorney General with exclusive authority to speak for the
Commonwealth in civil litigation.
Karcher therefore scarcely
impels the conclusion that, despite Virginia’s clear enactment
making the Attorney General the State’s sole representative in
civil litigation, Virginia has designated the House as its agent to
assert the State’s interests in this Court.
Moreover, even if, contrary to the governing
statute, we indulged the assumption that Virginia had authorized
the House to represent the State’s interests, as a factual matter
the House never indicated in the District Court that it was
appearing in that capacity. Throughout this litigation, the House
has purported to represent its own interests. Thus, in its motion
to intervene, the House observed that it was “the legislative body
that actually drew the redistricting plan at issue,” and argued
that the existing parties—including the State Defendants—could not
adequately protect its interests. App. 2965–2967. Nowhere in its
motion did the House suggest it was intervening as agent of the
State. That silence undermines the House’s attempt to proceed
before us on behalf of the State. As another portion of the Court’s
Karcher decision clarifies, a party may not wear on appeal a
hat different from the one it wore at trial. 484 U. S., at 78
(parties may not appeal in particular capacities “unless the record
shows that they participated in those capacities below”).[
3]
B
The House also maintains that, even if it
lacks standing to pursue this appeal as the State’s agent, it has
standing in its own right. To support standing, an injury must be
“legally and judicially cognizable.”
Raines v.
Byrd,
521 U.S.
811, 819 (1997). This Court has never held that a judicial
decision invalidating a state law as unconstitutional inflicts a
discrete, cognizable injury on each organ of government that
participated in the law’s passage. The Court’s precedent thus lends
no support for the notion that one House of a bicameral
legislature, resting solely on its role in the legislative process,
may appeal on its own behalf a judgment invalidating a state
enactment.
Seeking to demonstrate its asserted injury, the
House emphasizes its role in enacting redistricting legislation in
particular. The House observes that, under Virginia law, “members
of the Senate and of the House of Delegates of the General Assembly
shall be elected from electoral districts established by the
General Assembly.” Va. Const., Art. 2, §6. The House has standing,
it contends, because it is “the legislative body that actually drew
the redistricting plan,” and because, the House asserts, any
remedial order will transfer redistricting authority from it to the
District Court. Brief for Appellants 23, 26–28 (internal quotation
marks omitted). But the Virginia constitutional provision the House
cites allocates redistricting authority to the “General Assembly,”
of which the House constitutes only a part.
That fact distinguishes this case from
Arizona State Legislature v.
Arizona Independent
Redistricting Comm’n, 576 U. S. ___ (2015), in which the
Court recognized the standing of the Arizona House and
Senate—
acting to- gether—to challenge a referendum that gave
redistricting authority exclusively to an independent commission,
thereby allegedly usurping the legislature’s authority under the
Federal Constitution over congressional redistricting. In contrast
to this case, in
Arizona State Legislature there was no
mismatch between the body seeking to litigate and the body to which
the relevant constitutional provision allegedly assigned exclusive
redistricting authority. See 576 U. S., at ___–___ (slip op.,
at 11–12). Just as individual members lack standing to assert the
institutional interests of a legislature, see
Raines, 521
U. S., at 829,[
4] a single
House of a bicameral legislature lacks capacity to assert interests
belonging to the legislature as a whole.
Moreover, in
Arizona State Legislature,
the challenged referendum was assailed on the ground that it
permanently deprived the legislative plaintiffs of their
role in the redistricting process. Here, by contrast, the
challenged order does not alter the General Assembly’s dominant
initiating and ongoing role in redistricting. Compare
Arizona
State Legislature, 576 U. S., at ___ (slip op., at 14)
(allegation of nullification of “any vote by the Legislature, now
or in the future, purporting to adopt a redistricting plan”
(internal quotation marks omitted)), with 326 F. Supp. 3d, at
227 (recognizing the General Assembly’s “primary jurisdiction” over
redistricting and giving the General Assembly first crack at
enacting a revised redistricting plan).[
5]
Nor does
Coleman v.
Miller,
307 U.S.
433 (1939), aid the House. There, the Court recognized the
standing of 20 state legislators who voted against a resolution
ratifying the proposed Child Labor Amendment to the Federal
Constitution.
Id., at 446. The resolution passed, the
opposing legislators stated, only because the Lieutenant Governor
cast a tie-breaking vote—a procedure the legislators argued was
impermissible under Article V of the Federal Constitution. See
Arizona State Legislature, 576 U. S., at ___–___ (slip
op., at 13–14) (citing
Coleman, 307 U. S., at 446). As
the Court has since observed,
Coleman stands “at most” “for
the proposition that legislators whose votes would have been
sufficient to defeat (or enact) a specific legislative Act have
standing to sue if that legislative action goes into effect (or
does not go into effect), on the ground that their votes have been
completely nullified.”
Raines, 521 U. S., at 823.
Nothing of that sort happened here. Unlike
Coleman, this
case does not concern the results of a legislative chamber’s poll
or the validity of any counted or uncounted vote. At issue here,
instead, is the constitutionality of a concededly enacted
redistricting plan. As we have already explained, a single House of
a bicameral legislature generally lacks standing to appeal in cases
of this order.
Aside from its role in enacting the invalidated
redistricting plan, the House, echoed by the dissent, see
post, at 1–5, asserts that the House has standing because
altered district boundaries may affect its composition. For
support, the House and the dissent rely on
Sixty-seventh
Minnesota State Senate v.
Beens,
406
U.S. 187 (1972) (
per curiam), in which this Court
allowed the Minnesota Senate to challenge a District Court
malapportionment litigation order that reduced the Senate’s size
from 67 to 35 members. The Court said in
Beens: “[C]ertainly
the [Minnesota Senate] is directly affected by the District Court’s
orders,” rendering the Senate “an appropriate legal entity for
purpose of intervention and, as a consequence, of an appeal in a
case of this kind.”
Id., at 194.
Beens predated this Court’s decisions in
Diamond v.
Charles and other cases holding that
intervenor status alone is insufficient to establish standing to
appeal. Whether
Beens established law on the question of
standing, as distinct from intervention, is thus less than
pellucid. But even assuming,
arguendo, that
Beens
was, and remains, binding precedent on standing, the order there at
issue injured the Minnesota Senate in a way the order challenged
here does not injure the Virginia House. Cutting the size of a
legislative chamber in half would necessarily alter its day-to-day
operations. Among other things, leadership selection, committee
structures, and voting rules would likely require alteration. By
contrast, al- though redrawing district lines indeed may affect the
membership of the chamber, the House as an institution has no
cognizable interest in the identity of its members.[
6] Although the House urges that changes to
district lines will “profoundly disrupt its day-to-day operations,”
Reply Brief 3, it is scarcely obvious how or why that is so. As the
party invoking this Court’s jurisdiction, the House bears the
burden of doing more than “simply alleg[ing] a nonobvious harm.”
Wittman, 578 U. S., at ___ (slip op., at 6).
Analogizing to “group[s] other than a
legislative body,” the dissent insists that the House has suffered
an “obvious” injury.
Post, at 3. But groups like the string
quartet and basketball team posited by the dissent select their own
members. Similarly, the political parties involved in the cases the
dissent cites, see
post, at 3, n. 1 (citing
New York
State Bd. of Elections v.
Lopez Torres,
552 U.S.
196, 202 (2008), and
Eu v.
San Francisco County
Democratic Central Comm.,
489 U.S.
214, 229–230 (1989)), select their own leadership and
candidates. In stark contrast, the House does not select its own
members. Instead, it is a representative body composed of members
chosen by the people. Changes to its membership brought about by
the voting public thus inflict no cognizable injury on the
House.[
7]
The House additionally asserts injury from the
creation of what it calls “divided constituencies,” suggesting that
a court order causing legislators to seek reelection in districts
different from those they currently represent affects the House’s
representational nature. But legislative districts change
frequently—indeed, after every decennial census—and the Virginia
Constitution resolves any confusion over which district is being
represented. It provides that delegates continue to represent the
districts that elected them, even if their reelection campaigns
will be waged in different districts. Va. Const., Art. 2, §6 (“A
member in office at the time that a decennial redistricting law is
enacted shall complete his term of office and shall continue to
represent the district from which he was elected for the duration
of such term of office . . . .”). We see little
reason why the same would not hold true after districting changes
caused by judicial decisions, and we thus foresee no
representational confusion. And if harms centered on costlier or
more difficult election campaigns are cognizable—a question that,
as in
Wittman, 578 U. S., at ___–___ (slip op., at
5–6), we need not decide today—those harms would be suffered by
individual legislators or candidates, not by the House as a
body.
In short, Virginia would rather stop than fight
on. One House of its bicameral legislature cannot alone continue
the litigation against the will of its partners in the legislative
process.
* * *
For the reasons stated, we dismiss the House’s
appeal for lack of jurisdiction.
It is so ordered.