What happens in Virginia when a county board fails to adopt a redistricting plan after the decennial census?

Plain-English summary

Wise County's attorney asked what happens if the Board of Supervisors fails to adopt a redistricting plan after the 2010 decennial census. The County had four magisterial districts adopted in 2001 and precleared by the Department of Justice under § 5 of the federal Voting Rights Act. After the 2010 census, county officials concluded population had not shifted enough to require boundary changes, but a board vote tied 4-4 on two redistricting plans and 1-7 on a motion to readopt the 2001 plan. The result was no action.

Cuccinelli concluded that the constitutional and statutory framework left no discretion. Article VII, § 5 of the Virginia Constitution requires the governing body of any county elected by district to reapportion "in 1971 and every ten years thereafter," with districts that are contiguous, compact, and proportional to population. The use of "shall" carries mandatory force. Section 24.2-304.1(C) reinforces that the reapportionment must be based on the most recent decennial census data. So the Board's failure to adopt a plan was not just inaction; it was a failure to perform a constitutional duty.

The remedy: Article VII, § 5 itself states that "a suit shall lie on behalf of any citizen thereof to compel performance by the governing body." The General Assembly enacted statutory authorization for a citizen living within an affected district to bring an action in the local circuit court for a writ of mandamus. The Attorney General must be notified and "shall review the papers in the civil action and may represent the interests of the Commonwealth in developing an appropriate remedy." The State Board of Elections may also seek a writ of prohibition or mandamus from a circuit court or the Supreme Court of Virginia. Failure to obey the resulting court order can result in contempt. Importantly, the old default of reverting to at-large elections no longer applies after the Voting Rights Act preclearance requirements.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the Board have to redraw the boundaries even if no population changes required it?
Yes. The AG read "reapportion" to require an affirmative action of reallocating representation among the districts. The Board could readopt the 2001 boundaries by formal action, but it had to take the action; silence did not work.

Who can sue if the Board fails to act?
Any citizen living within an affected district may file an action for a writ of mandamus in the local circuit court. The Attorney General is notified and may participate to represent the Commonwealth's interest. The State Board of Elections may also seek mandamus or prohibition from a circuit court or the Supreme Court of Virginia.

What was the practical deadline?
The State Board of Elections recommended submitting redistricting plans to the Department of Justice by April 29, 2011 to clear preclearance in time for the 2011 primary. Wise County missed that window because it never adopted a plan.

What happened to the old at-large default rule?
The AG noted that under prior law, a board's failure to adopt a reapportionment plan may have resulted in a reversion to at-large elections, but that under current law and after enactment of the Voting Rights Act, this reversion is no longer an option; preclearance is required for any change.

Can a board member be held in contempt for ignoring a mandamus order?
Yes. The writ compels performance, and failure to comply threatens any individual officer with contempt.

Background and statutory framework

Article VII, § 5 of the Virginia Constitution requires that, when a county governing body is elected by district, the districts must be contiguous, compact, and proportional to population. The provision continues:

"[T]he governing body of any county, city, or town may, in a manner provided by law, increase or diminish the number, and change the boundaries, of districts, and shall in 1971 and every ten years thereafter, and also whenever the boundaries of such districts are changed, reapportion the representation in the governing body among the districts in a manner provided by law. Whenever the governing body of any such unit shall fail to perform the duties so prescribed in the manner herein directed, a suit shall lie on behalf of any citizen thereof to compel performance by the governing body."

"Shall" indicates mandatory force. "Reapportion" means "to apportion (as a house of representatives) anew." Section 24.2-304.1(C) requires the reapportionment to be based on the most recent decennial census data.

Section 5 of the Voting Rights Act of 1965 requires any change in election laws or practices in covered jurisdictions to be submitted to the Department of Justice (or to a three-judge District Court for D.C.) for preclearance.

The remedy framework: the General Assembly authorized a citizen within an affected district to seek a writ of mandamus, with notice to the Attorney General, who reviews the papers and may represent the Commonwealth. The State Board of Elections may also seek prohibition or mandamus from a circuit court or the Supreme Court of Virginia to ensure elections are conducted as provided by law.

Citations

• Va. Const. art. VII, § 5 (district reapportionment requirements; citizen suit to compel performance)
• Va. Code § 2.2-505 (authority for the advisory opinion)
• Va. Code § 24.2-304.1 (use of decennial census figures)
• Voting Rights Act of 1965, § 5 (federal preclearance, referenced without USC citation in the opinion)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-075-Mullins.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

June 22, 2011

Karen T. Mullins, Esquire
County Attorney, Wise County
206 E. Main Street
Wise, Virginia 24293

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Ms. Mullins:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented
You inquire as to the status of voting districts in Wise County in light of the fact that the Wise County Board of Supervisors has not adopted a reapportionment plan following the 2010 decennial census.

Response
It is my opinion that Article VII, § 5 of the Virginia Constitution and § 24.2-304.1 of the Code mandate that the Board take affirmative action to reapportion the magisterial districts for Wise County in this tenth year since the last reapportionment using the most recent decennial population figures. Further, it is my opinion that an action in mandamus lies in favor of any citizen of Wise County to compel the performance by the Board of its duty under Article VII, § 5 and § 24.2-304.1, and that in such an action my Office will review any papers filed to represent the interests of the Commonwealth to work towards an appropriate remedy.

Background
You state that in 2001 the Wise County Board of Supervisors (the "Board") adopted an ordinance setting forth four magisterial districts each electing two supervisors as well as School Board members in Wise County (the "County"). You further state that these districts were precleared by the United States Department of Justice as required by § 5 of the Federal Voting Rights Act of 1965, as amended. Upon review of the 2010 decennial census data, County officials concluded that there had not been sufficient population changes to require the 2001 district boundaries to be redrawn to maintain proportional representation among the four districts. You state, however, that the Board did consider two redistricting plans that would have reunited certain towns divided by the 2001 plan, and that both of these failed on a 4-4 vote. At the same meeting, a motion to readopt or reaffirm the 2001 district boundaries failed on a 1-7 vote of the Board.

Applicable Law and Discussion
The Virginia Constitution provides that if the governing body of a county is elected by district:

[T]he district shall be composed of contiguous and compact territory and shall be so constituted as to give, as nearly as is practicable, representation in proportion to the population of the district. When members are so elected by district, the governing body of any county, city, or town may, in a manner provided by law, increase or diminish the number, and change the boundaries, of districts, and shall in 1971 and every ten years thereafter, and also whenever the boundaries of such districts are changed, reapportion the representation in the governing body among the districts in a manner provided by law. Whenever the governing body of any such unit shall fail to perform the duties so prescribed in the manner herein directed, a suit shall lie on behalf of any citizen thereof to compel performance by the governing body.

"[E]very word employed in the Constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it." The use of the word "shall" in the Constitution or a statute generally indicates that the procedures are intended to be mandatory, rather than permissive or directive. The language in Article VII, § 5 plainly and unambiguously mandates that the governing body of any county, city or town whose members are elected by district "shall in 1971 and every ten years thereafter ... reapportion the representation in the governing body among the districts in a manner provided by law." The term "reapportion" means "to apportion (as a house of representatives) anew ... to make a new apportionment." Thus, in order to satisfy the mandate of Article VII, § 5, the Board must take an affirmative action to reapportion the County's magisterial districts in this tenth year since the last reapportionment, irrespective of whether the most recent decennial population figures for each of those districts would necessitate any boundary adjustments. Section 24.2-304.1(C) of the Code of Virginia imposes the ancillary requirement that the reapportionment be based on "the most recent decennial population figures for such county, city or town from the United States Bureau of the Census ...."

The Constitutional provision applies to those localities that elect members of their governing bodies on a district basis. You report that Wise County previously adopted an ordinance providing for election of its Board by four two-member districts and that the County's 2001 reapportionment was approved by the Department of Justice as required by Section 5 of the Federal Voting Rights Act and was then used for subsequent County elections. I note that, under prior law, the Board's inaction and failure to adopt a reapportionment plan may have resulted in a reversion to at-large elections, but under current law and after enactment of the Voting Rights Act, such a default position is no longer an option.

In addition to being governed by Constitutional and statutory requirements, local elections are subject to the State Board of Elections, which oversees elections in the Commonwealth and provides guidance to localities in conducting their redistricting and all other election matters. In a memorandum dated March 25, 2011, the State Board of Elections highly recommended that localities submit their redistricting plans by April 29, 2011. This date was determined to be the final date on which a locality could submit a reapportionment plan for preclearance by the Department of Justice sufficiently in advance of the upcoming deadlines and requirements associated with the 2011 Primary Election. Here, the County failed to adopt a redistricting plan, and therefore did not submit any plan to the Department of Justice. In addition to submission to the Department of Justice, a locality is required to send copies of its local redistricting changes to its local electoral board, the State Board of Elections, and the Division of Legislative Services.

As set forth above, the Board is specifically tasked with reapportioning the districts every ten years. The General Assembly anticipated the possibility that governing bodies might fail to perform this duty and, therefore, consistent with the right conferred by Article VII, § 5 upon citizens to bring suit to compel performance, enacted statutory authorization for a citizen living within an affected district to bring an action before the local circuit court for a writ of mandamus. This writ of mandamus compels performance of the duty and threatens any individual officer failing to comply with its dictates as being in contempt of court. In such an action, the Attorney General must be notified and "shall review the papers in the civil action and may represent the interests of the Commonwealth in developing an appropriate remedy that is consistent with requirements of law."

The State Board of Elections also is authorized to seek a writ of prohibition or mandamus from a circuit court or the Supreme Court of Virginia "for the purpose of ensuring that elections are conducted as provided by law" and thereby has the power to ask a court to compel the governing body to carry forth its constitutional and statutory duties in the interest of fair and uniform elections.

Conclusion
Accordingly, it is my opinion that Article VII, § 5 of the Virginia Constitution and § 24.2-304.1 of the Code mandate that the Board take affirmative action to reapportion the magisterial districts for Wise County in this tenth year since the last reapportionment using the most recent decennial population figures. Further, it is my opinion that an action in mandamus lies in favor of any citizen of Wise County to compel the performance by the Board of its duty under Article VII, § 5 and § 24.2-304.1, and that in such an action my Office will review any papers filed to represent the interests of the Commonwealth to work towards an appropriate remedy.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General