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SUPREME COURT OF THE UNITED STATES
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
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
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.
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
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
, 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
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.
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
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
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
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
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
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.,
predated this Court’s decisions in Diamond
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.