ON Monday, the U.S. Supreme Court dismissed an appeal brought by the Virginia House of Delegates in a 2015 racial gerrymandering case, ending Republicans’ hopes of using the map they drew up following the 2010 census during this year’s legislative elections, in which all 140 General Assembly seats are up for grabs.
The new court-ordered map affects 26 of the 100 House districts, and places six GOP incumbents in Democratic districts—including House Speaker Kirk Cox, R–Colonial Beach, and House Appropriations Chairman Chris Jones, R–Suffolk.
House Republicans challenged an appellate court ruling that they violated the 14th Amendment’s Equal Protection Clause because they used a target of 55 percent of the black voting age population while drawing 11 majority-minority legislative districts. They argued that the federal Voting Rights Act, which requires legislators to avoid creating districts with too many or too few minority voters, made it impossible for them not to consider race, and that their map had been approved by the General Assembly, Virginia’s governor, and President Obama’s Justice Department.
The Supreme Court did not address the merits of the case, so that issue will have to be resolved another day. The court’s ruling was based on a legal technicality: the House lacked standing to bring the appeal.
“Under Virginia law, authority and responsibility for representing the State’s interests in civil litigation rest exclusively with the State’s Attorney General,” who chose not to appeal, Justice Ruth Bader Ginsburg wrote for the 5–4 majority, which included conservative Justices Clarence Thomas and Neil Gorsuch. “The State of Virginia would rather stop than fight on. One House of its bicameral legislature cannot alone continue the litigation against the will of its partners in the legislative process.”
The decision is universally considered a win for Virginia Democrats in a year in which the commonwealth’s legislative contests will be among the most closely watched elections in the nation. Conventional wisdom has Democrats adding to their 15-seat “blue wave” gains in 2017 and wresting control of both the House of Delegates and the state Senate from Republicans, who have controlled both chambers since 2015.
But there are a few unanticipated wild cards this year.
Fewer voters typically show up at the polls during off-year elections, and the still-unresolved racial and sexual scandals that engulfed all three top Democratic statewide officeholders in February could depress their party’s turnout even further while motivating Republican voters.
How independents will view Democratic candidates who called for Gov. Ralph Northam’s resignation after his medical school yearbook page surfaced in February with a photo of figures in blackface and a Ku Klux Klan robe—and who are now accepting campaign donations from him just four months later—is anybody’s guess.
Further complicating the picture is Gov. Northam’s call for a special session in July to consider his gun control agenda in the wake of the mass shooting by a disgruntled city employee in Virginia Beach.
Cox has publicly stated that while the governor has the authority to call a special session, “he cannot specify what the General Assembly chooses to consider or how we do our work. We intend to use that time to take productive steps to address gun violence by holding criminals accountable with tougher sentences—including mandatory minimums.” So that idea could backfire on Northam.
House Republicans are also considering using the special session to hold a hearing on sexual assault allegations against Lt. Gov. Justin Fairfax, keeping the tawdry scandal in the public eye. But that could backfire on them.
There’s no doubt that the new legislative map gives Democratic candidates an advantage, and the GOP has been steadily losing ground as Virginia moves from a red to an increasingly blue state. But embattled Democrats have created their own political headwinds this year.
On the other hand, Republicans can no longer count on safe, gerrymandered districts. If they want to preserve their razor-thin majorities in the General Assembly, they will have to aggressively make their case to all Virginians, including minority voters. A legislative seat is supposed to be the hard-won result of a public clash of competing ideas, not a sinecure. A party that has to rely on gerrymandering to win is a party that doesn’t deserve to.
Whatever happens in November, it promises to be a most interesting campaign.