In a move with broad political and legal meaning, state officials in Virginia moved Monday afternoon to draw the U.S. Supreme Court further into the intense national feud over redrawing congressional election maps.
In a 24-page filing, the state asked the Justices to clear the way for officials to go ahead with plans to use new maps that were drawn by the Democratic-controlled state legislature with the aim of shifting four Republican-held seats to Democrats in this year’s election in Virginia. The officials want the Court first to block temporarily a Virginia Supreme Court decision nullifying the new Democratic plan, and, second, to overturn that ruling when the state soon files a full appeal.
The Justices are expected to act at least on the temporary request after they discuss it in private later this week. What they do then will be a strong clue of how the Justices are likely to react to the Virginia version of the national political battle. For Virginia, there is little time for the Justices to react: state officials must approve this year’s congressional ballot by May 28.
Both major parties have been drafting new maps in a frenzied effort to improve their chances for winning control of the U.S. House of Representatives in the next Congress, to be chosen by voters in all of the states on November 3.
So far, the Republicans, with a major boost from a decision late last month by the Supreme Court on federal voting rights law, appear to be out-gaining their political rivals in this round of “partisan gerrymandering” – that is, the process of mapping new election districts to give one party a distinct advantage at the polls.
The GOP had grown deeply concerned about how their congressional candidates would fare in November, amid a series of deep political controversies surrounding President Trump on the economy and on the war in Iran, but their recent success in gerrymandering have given them fresh new hopes.
The Virginia Supreme Court ruling now being tested by state leaders, a 4-to-3 ruling three days ago, was based on the state constitution, but the new filing on Monday cited parts of that ruling that it said were tied to federal law, and actually contradicted it. While the Supreme Court commonly respects state court readings of their own constitutions, it clearly has the power to overturn even those if they violate federal law.
The state leaders, in the new document and in the formal appeal they are planning, focus on the supposedly simple question of when election day occurs. They rely on federal law, which since 1845 has specified that federal elections occur on a single day across the nation: the first Tuesday after the first Monday in November, every two years.
But that question is made quite complex in the Virginia case, because what is at stake is how federal election law applies, not to the federal election this November, but rather how it influenced when state legislative elections are held under the Virginia state constitution. The
Virginia dispute centers on the multi-faceted process that the state constitution sets for amending it.
The Democrats’ new map, approved by the state voters in a referendum on April 21, was nullified by the state Supreme Court by the way the state court’s majority interpreted the word “election,” in both federal and state law.
The state leaders’ filing Monday made two legal claims:
First, that the state court made “a grave misreading of federal law,” and then applied that flawed interpretation when it decided what the state constitution requires in the amendment process.
That, the state contends, not only violates the specific terms of a federal law that, since 1845, had defined when a congressional election is to be held, but also runs counter to precedents set both by the U.S. Supreme Court and by lower federal courts on what that old law means.
Second, the state court, adopting its own meaning instead of applying what the federal law has long meant, exceeded the limits that the federal Constitution itself imposes on state courts, even when they are interpreting the meaning of state laws or constitutions.
That claim relies upon a historic decision by the U.S. Supreme Court, issued three years ago in the case of Moore v. Harper. That decision, relying on the U.S. Constitution’s assignment to state legislatures of the basic function of organizing congressional elections (the so-called “Elections
Clause”), declared that “state courts may not so exceed the bounds of ordinary judicial review as to constitutionally intrude upon the role specifically reserved to state legislatures.”
The Court said it need not spell out in that case (involving a dispute over congressional elections in North Carolina) just where those “bounds” were, but Virginia’s leaders contended on Monday that their state Supreme Court had definitely gone too far. The state court, they said, “arrogated to itself the power vested in the state legislature to regulate federal elections.”
Under a timetable set by Chief Justice John G. Roberts, Jr., Republicans who opposed the state constitutional amendment in Virginia are to file their reply by Thursday afternoon. Roberts, who handles emergency disputes that arise in the geographic region that includes Virginia, is expected to share the Virginia controversy with his eight colleagues.
UPDATE: In a second action Monday in the gerrymandering dispute, the Court by a 6-to-3 vote returned three pending Alabama cases to lower courts, ordering them to reconsider prior rulings they had made in cases involving Alabama’s congressional election districts. The state legislature there is working on a new Republican-drawn map that may result in GOP gains, even though early voting has already begun and the primary election is set for next week.
