The Supreme Court’s GOP-appointed majority has handed a series of wins to Republicans who are trying to make their congressional maps redder ahead of the midterm elections. Now, the high court faces an urgent appeal from Virginia Democrats who are trying to salvage their response to GOP gerrymanders after their voter-approved effort was struck down by the state Supreme Court.
So, will the justices similarly bless Virginia’s gerrymandering amid the nationwide redistricting war that started with Texas’ Trump-backed map?
There’s reason to doubt it.
And that’s not only because it’s a Republican-dominated court considering a Democratic appeal.
Another challenge Virginia officials face is the extent to which the ruling against them was based on the state court’s interpretation of the state constitution, as opposed to the Voting Rights Act and other federal issues that the justices have been deciding.
In a 4-3 ruling last week, Virginia’s high court majority said the legislative process that put the constitutional amendment for a new congressional map on the ballot violated Virginia’s Constitution.
The state’s amendment procedures are, per the majority, admittedly “laborious” and “slow-walk[ed]” to “guard against hasty changes.” The majority explained that the process gives voters two chances to weigh in on a proposed amendment, the first time indirectly and the second time directly. The first, indirect time is after legislators initially propose the amendment, because voters can then choose to retain those representatives based on their position on the amendment. The second, direct time occurs if it gets on the ballot, as this one did when voters approved it in April.
To get a measure on the ballot, it actually needs to be approved twice by the state legislature before it goes to the voters. In this case, the proposed amendment passed the legislature on Oct. 31 and then in January before voters backed it at the ballot box last month.
The legal issue centers on the first step in late October, when the legislature voted prior to Election Day on Nov. 4 but after early voting had started. That timing turned out to be crucial, because the state constitution says the second approval must happen “after the next general election.” So, the case raised the question of whether the first vote happened prior to the November election.
The state court majority said it didn’t, reasoning that the phrase “general election” in this context included early voting. The majority rejected the state’s “thesis” that “early Virginia voters unknowingly forfeited their constitutionally protected opportunity to vote for or against delegates who favor or disfavor amending the Constitution by not anticipating a legislative vote on a constitutional amendment four days before the last day of voting.”
The dissent said the majority’s reading was an unnatural one that “broadened the meaning of the word ‘election,’ as used in the Virginia Constitution, to include the early voting period.”
But even if a majority of the Supreme Court were to disagree with the state court majority’s conclusion, that alone would not be enough for the justices to step in. A specific federal issue is needed. The justices wouldn’t issue a ruling simply to tell to a state court: We interpret your state constitution differently than you did.
But it’s not that simple, according to Virginia Democrats. In an emergency appeal, they argued their case presents the sort of federal issues that warrant the Supreme Court’s attention. Indeed, they wrote, the state court ruling “is deeply mistaken on two critical issues of federal law with profound practical importance to the Nation.”
First, they said, the state court ruling is based on “a grave misreading of federal law, which expressly fixes a single day for the ‘election’ of Representatives and Delegates to Congress.”
Second, they said, the state court’s definition of “election” was so outlandish that it “transgressed the ordinary bounds of judicial review such that it arrogated to itself the power vested in the state legislature to regulate federal elections.” That language comes from the Supreme Court’s 2023 ruling in Moore v. Harper, a case that raised concerns about right-wing legislatures gaining unreviewable power over elections.
“This is the rare case in which a state court’s decision so dramatically departed from the text of the state constitution that it satisfied this exacting standard,” Virginia officials wrote in their emergency appeal.
We’ll find out soon whether the Supreme Court takes the unlikely step of considering their argument. The more realistic question might be whether any justices dissent from the likely forthcoming denial of Virginia’s emergency application.
Chief Justice John Roberts, who handles emergency litigation from Virginia, told state Republicans opposed to the map to file a response by Thursday at 5 p.m. ET. The court could rule any time after that.
The post How the Supreme Court could side with Virginia Democrats – and why it probably won’t appeared first on MS NOW.
