By Josh Stanfield
Josh Stanfield is a member of the Central Committee of the Democratic Party of Virginia. He tried to intervene as a plaintiff in the Goldman case in 2021 but was denied by the Court. He lives in Yorktown.
On Friday night, phones across the Commonwealth lit up with a text message from Paul Goldman, the sole plaintiff in a federal lawsuit seeking 2022 House of Delegates elections in the new, constitutional districts:
“Breaking news: After another week – 11 months – with no opinion, Goldman to file next week withdrawing from Goldman v Brink redistricting case.”
Voting rights advocates were confused and aghast. Incumbents were surely elated, including Speaker Todd Gilbert who’s all but guaranteed another year as Speaker if Goldman drops the case. But this is a baffling decision by Goldman, known to many for his relentless persistence in the face of long odds.
So I spent a few hours on the phone with Goldman over the weekend, hoping to discern the rationale behind such an uncharacteristic decision to drop the case.
A little background: I first spoke to Paul Goldman in 2017. Since then, I’ve seen him take on the Navy Hill redevelopment project in Richmond, the pet project of former Dominion Energy CEO Tom Farrell and Richmond Mayor Levar Stoney that was ultimately rejected by Richmond City Council. I’ve seen him spearhead the successful effort to stop the One Casino + Resort project in Richmond last year. I’ve seen him win FOIA and ballot access lawsuits. And I read his book, Remaking Virginia Politics, released earlier this year.
From Howell and Wilder to the Richmond elected mayor law and the referendum to fully fund public school modernization, Goldman works within the confines of the law and formal institutions in order to achieve change. As Virginia Mercury columnist Bob Lewis admitted, in a quasi-apology to Goldman:
“But even when Paul came at us with ideas out of left field – occasionally, wide of the foul pole – there was still undeniably an argument rooted in the law, the Constitution, administrative and legislative norms, or all of the aforementioned. I and other writers dismissed Paul at our own peril.”
The key takeaway is that, at his core, Paul Goldman is an institutionalist. He maintains a faith in the ability of U.S. institutions to perform their proper roles, a faith that every constitutional harm has a remedy if a citizen is able and willing to pursue it.
So how is it that Goldman the institutionalist is poised to drop his high-profile federal lawsuit, essentially conceding that the federal courts can not or will not do their jobs?
Look to 2019 for a prelude to Goldman’s current crisis of faith in the system. That year, he led a petition drive and collected over 15,000 signatures from Richmond voters to put the Navy Hill redevelopment project on the November ballot. The Richmond Registrar at the time, Kirk Showalter (later removed by the Richmond Electoral Board), disqualified enough signatures to keep the Navy Hill referendum off the ballot. Goldman appealed to the Richmond Circuit Court.
Although Goldman, with a letter from the Richmond Electoral Board, had evidence that the Registrar disqualified valid signatures, then Chief Circuit Court Judge Joi Jeter Taylor ruled against him without addressing all of his motions or allowing him to cross-examine the Registrar.
“She denied me the right to cross-examine Showalter. I had to get it on the ballot by a certain time. [An appeal] would’ve been too late,” Goldman said, although he’s confident he would’ve won an appeal of Judge Taylor’s decision.
“I did feel like I was taken advantage of and played. It was completely illogical and unlawful what they did,” Goldman told me Saturday regarding the Navy Hill legal saga.
Fast forward to last year. Goldman, with the 2019 experience of having a judicial clock run out on him surely in mind, filed the current lawsuit on June 28, 2021. He did so understanding that the seminal and topical case ordering 1982 House of Delegates elections, Cosner v. Dalton, was settled by a court in the same Eastern District of Virginia in a matter of weeks.
Yet it took nearly four months for Goldman to get a hearing – a hearing I attended on October 12, 2021 – even though he made a motion (and was denied) in September for an expedited hearing. In the hearing, U.S. District Court Judge David Novak explained the delay to the AG’s lawyers:
“You know, in the Cosner case, they ordered everything to be resolved by February. I’m trying to move at an appropriate speed, recognizing, though, I didn’t expedite it before when I thought I was giving you the opportunity to do what you needed to do. Now I’m kind of stuck because I don’t think you did what you needed to do. So I’m trying to be fair, but I need to move the case.” (Page 37).
Imagine Goldman, after his motion to expedite the case was denied, hearing the judge tell the government’s lawyers that he didn’t expedite in order to give the government time to “do what [they] needed to do,” that is, time to make their best case.
Judge Novak, in a moment of clairvoyance, also warned Attorney General Mark Herring’s lawyers:
“Now, I hope, if you [appeal], you’re sincere. Like, you’re not just trying to do the stall game to wait this thing out…” (Page 44).
And what happened next? AG Herring appealed to the 4th Circuit Court of Appeals, an appeal that AG Jason Miyares continued. Goldman filed motions to expedite the 4th Circuit case, to mediate the issue with the government, and for summary judgment, all without any success in speeding up the process.
While the 4th Circuit appeal was proceeding, the November 2021 elections took place under an unconstitutional scheme. Then the Defendants in Goldman’s case, the officers of the State Board of Elections, issued two-year Certificates of Election to the winners of last November’s House of Delegates elections early and unlawfully, according to Goldman. Goldman filed multiple motions for the Court to act, but Judge Novak determined he didn’t have jurisdiction pending the 4th Circuit appeal.
The government was not successful in their appeal to the 4th Circuit – but they were successful, to use Judge Novak’s phrase, at playing the “stall game” masterfully, as five more critical months evaporated. The 4th Circuit did not deny the appeal until March 15, 2022.
Finally came the District Court’s rejection of potential intervenors in the case, for example Loudoun NAACP President Pastor Michelle Thomas who was present at the last hearing on March 21, 2022. Judge Novak indicated last October he was giving a couple weeks for intervenors to file, but this never happened due to the appeal. Now Judge Novak doesn’t believe he has the authority to allow intervenors like Pastor Thomas of underrepresented Loudoun County.
The practical result is that Goldman alone must represent the constitutional claims of millions of Virginia voters, even though multiple Black potential plaintiffs from incredibly harmed districts were prepared to intervene and showed up to the March 2022 hearing.
Goldman is nearly 80 years old with a bad hip; he has no lawyers, no paralegals, no paid staff at all. Yet he’s spent thousands of dollars, filed hundreds of pages of legal briefs, responded to hundreds more, argued orally twice before the federal District Court and once before the 4th Circuit Court of Appeals, and still nobody can tell him if he has standing to sue.
Now he faces a situation in which the government is arguing that, even if he’s had standing to sue all along, it’s all moot anyway because the elections already occurred!
What would it ultimately mean for Goldman, the political institutionalist par excellence, to give up on a system in which he both thrives and deeply believes? “It’s a question I’ve been trying to avoid – but maybe I can’t,” Goldman told me.
If the government succeeds in stalling Goldman’s case into irrelevance – and if the Court is perceived as complicit, even unintentionally, in the stalling – what public confidence remains in our institutions could reach a new nadir.
Regardless of how the federal courts rule, it’s clear that Goldman believes some damage has already been done:
“That the state political establishment has been willing to accept actions deemed unconstitutional 40 years ago should shake anyone’s faith in the system.”
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