In June 2019, the Supreme Court (SCOTUS) rejected an appeal in a gerrymandering case from Virginia, holding that the legislature’s House alone did not have standing to challenge lower federal court rulings that found the state’s 2011 redrawn districts racially improper.
In rejecting the GOP-led challenge, Justice Ruth Bader Ginsburg cited the bicameral structure of the state’s General Assembly to defeat another claim, that court-drawn maps, if affirmed, infringed on the legislature’s constitutionally guaranteed authority [Art. 1, Sec. 4]: “The times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.” Chief Justice Roberts joined Justice Alito’s dissenting opinion in this case, supporting the argument that one chamber of a legislature has standing. It is very likely that the majority was knew that the appeal was, in fact, only by the House Republicans.
Observers are aware that Virginia has initiated a process to establish an independent, nonpartisan commission to draw congressional and state district boundaries. In February 2019, the General Assembly adopted legislation to create the commission, and will review the plan during its 2020 session. Then, the proposal will be the subject of an electoral referendum in November 2020, to amend the Commonwealth’s Constitution for this purpose. These steps anticipate the results of the 2020 census.
Followers of SCOTUS have noticed the fragile 5-4 majority opinions emerging from the Court this term, reflecting unpredictable ideological groupings. Chief Justice Roberts has joined in majority opinions navigating disparate judicial ideologies but also evidencing a willingness to jettison precedent.
In a 2015 decision (Arizona State Legislature v. Arizona Independent Redistricting Commission), the majority opinion by Justice Ginsburg held that a redistricting referendum approved by voters was consistent with the state’s constitution and legislative process, holding that the legislature is “the power that makes law.” Chief Justice Roberts’ minority argued that the authority of the legislature to draw electoral boundaries was “unambiguously in the U.S. Constitution.” The literalists (originalists) failed.
The national GOP is keenly aware of its opponent’s designs to challenge the Republican hegemony in state houses. “We’re going to do everything we can to influence the elections because the future of the party for the next 10 years depends on it,” said the president of the Republican State Leadership Committee.
Thus, Virginia’s trajectory to eliminate gerrymandering has a number of potential hazards. A constitutional amendment to authorize a commission to draw districts could be challenged with an eye toward attracting a different majority than in the Arizona case, and one headed by the Chief Justice on the grounds that only the legislature under the U.S. Constitution is authorized to draw boundaries.
Not highlighted in SCOTUS’ June refusal to rule upon the appeal by the Virginia GOP was the claim that the legislature had the inherent and Constitutional authority to draw federal election districts and court drawn maps infringed upon that authority. Justice Ginsburg disposed of that argument by asserting that such authority belonged to the entire General Assembly, not to the House alone. However, this means that the thought is not moribund in the Commonwealth and might be resurrected to challenge its independent commission.
Nor is the precedent of the 2015 Arizona case much of a barrier to a court that has already demonstrated some inclination to discard prior decisions. Then, there is the matter of the shifting ideologies and alliances within the Court itself, along with the shuttling of the Chief Justice from one majority group to another. In short, Virginia’s path to one person, one vote, may be the proverbial rocky road.
The national GOP is keenly aware of its opponent’s designs to challenge the Republican hegemony in state houses. “We’re going to do everything we can to influence the elections because the future of the party for the next 10 years depends on it,” said the president of the Republican State Leadership Committee. Republicans control 29 state legislatures and are narrowly focused on retaining a majority in state senate chambers as a strategy to forestall redistricting measures. Virginia, where the GOP has a two seat margin in the House of Delegates and the Senate, is a paradigm for the national battleground and may in the 2019 election be a bellwether. Stay tuned.