Virginia Democrats made a plan to join in the nation’s spreading gerrymander war, with the two major political parties seeking to capture more seats in Congress’s closely-divided House of Representatives.  The Virginia skirmish in the war would result in a 10-to-1 Democratic advantage over the Republicans, a switch of four seats from the GOP.

Enlisting the people in amending the Virginia state constitution, the Democrats’ plan seemed to work: the amendment won approval.

Right?  No, it did not.  Why?  On Friday, before the plan could go into effect, a conservative-dominated state Supreme Court struck down the amendment, dividing 4-to-3.  This year’s election, the court said, will be under the existing map: six seats chosen in Democratic districts, five in GOP districts.

State officials promptly vowed to take the controversy on to the U.S. Supreme Court.  (More on that later in this report.)

Meanwhile, what explains the state court’s ruling?  To start, a couple of basic political theories were at work:

First, constitutions are hard to amend, and that supposedly is as it should be.  They are meant to be more enduring, “for ages to come,” as the U.S. Supreme Court once said of the U.S. Constitution.  One of Virginia’s most important historic figures, James Madison, said that a constitution creates “a government in perpetuity.”

Virginia’s constitution is in some ways even harder to amend, and that played a key role this time.

Second, a core democratic theory is that the people themselves should have a prominent role if their constitution is to be written or altered.  Virginia’s constitution, first adopted in 1776, declares in its Section 2 that “all power is vested in, and consequently derived from, the people.”  The state’s voters cast ballots this year on the Democrats new congressional map from March 6, beginning early voting, to election day April 21.  The “yes” vote won, 1,604,276, to a “no” vote of 1,499,393 (a margin of 3.38 per cent).

Republicans sued in state court to challenge the constitutionality of the process, won in a lower court in rural Tazewell County in far southwestern Virginia, and defended that result when state officials and the Democrats appealed to the state Supreme Court to support the referendum’s outcome and the process.

The Democrats’ plan involved the suspension, for one election cycle, of a previous reform system, put into the state constitution with approval of the states’ voters in 2020.  A state Redistricting Commission was created, with the aim of ending partisan gerrymandering of the congressional seats.

For congressional elections this year, the Democratic plan would mean that redistricting would be done under the pre-commission process, which assigned roles to the state legislature and to the state’s voters.  The map the Democrats drew under that process would bring about the result that the state court’s new ruling now has blockec.

Here are the steps mandated by the state’s amendment process, figuring directly in the dispute over the Democratic map:

1. The state legislature (the General Assembly) may propose an amendment by majority votes in both of its two chambers.
2. An amendment then may be proposed again by the Assembly, but not until a separate, future session.
3. Between the two sessions, there must have been a new election for members of the Assembly’s House of Delegates (the lower house in Virginia).
4. If proposed again at the second session, an amendment is put before the voters in a statewide referendum, with an up-or-down vote requiring a simple majority for adoption as part of the state constitution.

The idea behind mandating an election between legislative votes on an amendment is to give the people a chance to consider that amendment as a factor – first, when they vote for Delegate candidates (who might have taken a position on the proposal), and, second, when they consider the amendment itself during the referendum process.

On the Democrats’ new map, drawn to switch the congressional districting lineup to a 10-to-1 Democratic tilt for this year, the General Assembly approved it in a series of party-line votes.

Friday’s decision against the new redistricting map turned on the meaning of the requirement for an intervening election of Delegates, between the two votes proposing the amendment.  All of the seven members of the Court focused specifically on what the word “election” means in this process.

The final disagreement over that word is complex, because the majority and dissent were both focusing on when there was last an election for Delegates, not on the referendum that unfolded this year.  While the majority did not specifically fault the conduct of the referendum itself, its opinion made a number of sly comments on how close the outcome was, implying that it was a weak test of “the will of the people”).  The decision said that the state constitution had been violated because there was no intervening Delegate election between the two General Assembly votes on the Democratic plan.  The violation, the majority commented, “incurably taints the resulting referendum vote,” nullifying its legal effect.

The court majority’s ruling

The four justices noted that there was an election of Delegates last year, but it occurred before the amendment had been twice proposed by the General Assembly.  The election, they concluded, had already started with early voting in September, and the state sent the amendment to voters for the first time in October, after more than 1.3 million votes had been cast for Delegates.

The constitution’s reference to an “election,” the majority declared, means the entire process from early voting to election day.

When voting on Delegates concluded on election day, November 4, the constitutional violation had already happened, according to the decision.

The dissenters’ view

The three dissenters took the view that the election last year did not start with early voting on Delegates, but occurred on election day, last November 4 when voting concluded.  That meant, those justices wrote, that the constitutional demand for an intervening election had been satisfied, occurring between the legislature’s first proposal of the amendment and its second.

Among other points the dissenters made was that federal law governing congressional elections sets a single uniform day, across the nation, for that to occur.

What happens now?

Soon after the state Supreme Court released its ruling, state officials including legislative leaders asked that court to put the decision on hold, saying that the state and its officials “intend to file an emergency petition” to the U.S. Supreme Court.

They did not spell out how they plan to challenge the decision.  Ordinarily, the highest courts in state government have the last word on what their state constitution means.  However, the Constitution’s Article VI makes federal law and the U.S. Constitution the “supreme law of the land,” and state officials may not violate any of those provisions.

In a famous 1816 decision, in Martin v. Hunter’s Lessee, the Supreme Court bluntly reminded a prominent Virginia judge, Spencer Roane, of the supremacy of national law over state law.  That involved a federal-state conflict over land holdings, including Virginia property owned by Chief Justice John Marshall (who stayed out of the case).

In order for Virginia officials to rely now on that and other precedents, they would have to make an argument that the redistricting decision somehow violated the federal rights of Virginians to take part in the important role of amending their state constitution, otherwise violated their voting rights, or that there was a violation of federal law governing congressional elections.

The election calendar is now moving rapidly across the nation, toward the general election for Congress in November, and the Supreme Court generally frowns on changing election laws as voting begins or is about to begin, because of the potential for confusing voters (what lawyers and judges refer to as the “Purcell principle}.

The impact beyond Virginia

The state court ruling against the Democratic gerrymander was a major setback for that party, with nationwide impact on the new election battles, because it has the potential to deny that party a chance to capture GOP as many as four seats in Virginia alone.

Republican-led state legislatures are moving to target as many as 19 House seats now held by Democrats, and that party has yet to find potential offsets of that many now held by Republicans.  Republican-dominated legislatures in Alabama, Florida, Louisiana and North Carolina are taking advantage of last month’s Supreme Court decision significantly narrowing the impact of the federal Voting Rights Act as a check on gerrymandering.