An alternative redistricting strategy for VA Democrats

by Paul Goldman

On Friday, I showed how the recent U.S. Supreme decision on the GOP Texas redistricting put a fork in the Spanberger/Scott/Surovell mid-decade redistricting plan. The High Court made certain that Virginia and other states got the message: once the campaign season is in full swing, fundamental changes to election rules like giving final approval to new congressional districts in close proximity to the start of early voting would be rejected. The liberal Warren Court of the 1960’s actually agreed. Thus, even if Virginians approved a constitutional change in an April referendum, the timeline for getting the courts to sign off on the proposed changes to the congressional districts would be too late to implement in 2026. 

But today, I will layout a different strategy for how VA Democrats can use the Texas rationale to possibly do a redistricting the Supremes will have far more difficulty in rejecting. This alternative strategy is admittedly a long shot. But it beats a no shot. Moreover, the General Assembly should do both strategies simultaneously: continue with the Spanberger/Scott/Surovell approach while also pursuing the alternative proposed below.

BASIS OF MY THESIS IS ARTICLE II, SECTION 6 of the VA CONSTITUTION 

 It reads in pertinent part: 

“Every (congressional) district shall be drawn in accordance with the requirements of federal and state laws that address racial and ethnic fairness, including the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and provisions of the Voting Rights Act of 1965, as amended, and judicial decisions interpreting such laws.”

Accordingly, this constitutional provision was law in Virginia when the current congressional districts were created in 2021. As we know, Virginians voted to create the Virginia Redistricting Commission. Prior to the creation of the VRC, the power to redistrict the state into congressional districts rested with the General Assembly (GA). But Virginians decided to transfer redistricting power to the non-partisan VRC when enacting Article II, Section 6 and 6-A of the Constitution of Virginia.

However, the VRC proved, as some of us had predicted, unable to decide on a plan to redistrict the state in compliance with the new census. Therefore, the Virginia Supreme Court in actuality created the existing 11 congressional districts. These districts were made to be compliant with Section 6 cited above.

Do Article 6 and 6-A prohibit mid-decade redistricting?

On the surface, this may appear to be true. The recently enacted constitutional amendments transferring power to the VRC seem to say congressional redistricting cannot occur again until after the 2030 census. 

But I pose this question: Is this true even if the GA decided the current congressional districts did not comply with the part of Section 6 cited above? Let me ask this question a different way. Suppose the General Assembly adopts a finding that the current congressional districts impose on the people of Virginia the type of prohibited “unfairness” banned by Section 6. Thus, the following question: Does the language in the constitutional amendments creating the VRC prohibit the General Assembly from acting in 2026 to modify the existing districts to eliminate such unfairness and inconsistency with the judicial decisions referenced in Section 6? For example, Section 6 doesn’t say which judicial decisions are binding. The Supreme Court itself has issued some doozies on voting issues. So have certain federal Courts of Appeal. 

The inherent power of the General Assembly of Virginia

The Constitution of Virginia differs from the federal constitution in one very fundamental legal aspect. The U.S. Constitution Is one of limited powers. Uncle Sam only has those powers found in the federal constitution. However, the Constitution of Virginia gives the state government all powers except those not expressly prohibited therein. 

Accordingly, it seems the GA retained all the legislative power to protect the interest of the people of Virginia in fair congressional districts except as expressly limited by the Constitution passed by the people of Virginia. In that regard, therefore: Did the people in passing Section 6 takeaway the power of the GA to fix such unfairness? Or put another way: Did the people of Virginia in enacting Section 6 say that whatever unfairness they might face in the future, they would have to live with it until 2033 at the earliest? (The date when the new districts passed by the VRC or the Supreme Court would go into effect)

My conclusion: The GA retained the power to stop the unfairness in 2026 if present. It would be unreasonable to think the public decided to accept that unfairness for another seven years. What legitimate public interest would be served by this position? 

 Who determines whether the prohibited “unfairness” exists?

The determination of this unfairness to Virginian seems inherently the power of the state legislative branch. So, let’s assume arguendo the appropriate General Assembly committee holds a hearing on this issue. At this hearing, Governor Spanberger states, in her opinion, the unfairness exists. At this hearing, Attorney General Jones states, in his opinion, this fairness exists. At this hearing, there are experts who say this unfairness exist.

After hearing this testimony, the GA later by resolution finds such unfairness exists. Furthermore, it finds it has not only the right, but the duty under Section 6 to fix it.

My conclusion: This determination is indeed the inherent power of our elected representatives. The Republicans can, of course, challenge the conclusion. They can sue and say the finding is wrong, a pretext, whatever. However, this is a question of state law, not federal law. Based on my analysis of Virginia case law, our state courts have found such finding by the GA binding on state courts except in rare circumstances. By precedent, a federal court is therefore obligated to adopt this GA legal position on Section 6 since a Virginia state court would do likewise. This is not a rare exception situation. 

What my alternative redistricting approach uniquely offers

House Speaker Don Scott, D-Portsmouth, and Senate Majority Leader Scott Surovell, D-Fairfax, can immediately start the legislative process needed for the GA to ultimately adopt a finding that the current congressional districts violate Section 6. This will enable them to present a bill creating the new fair districts meeting Section 6 requirements for Governor Spanberger’s signature soon after her inauguration. 

Therefore, these new districts will become law by around January 25. This is over three months before the new districts could become law under the Spanberger/Scott/Surovell plan. Based on their plan, the 2026 congressional campaign would already be in full swing under the current districts prior to their adopting new districts, not to mention the wait for a final court decision

Therefore, from the beginning of this year’s congressional elections, under the alternative plan the candidates and the voters would understand these newly created 2026 districts — not the existing 2021 districts — might be the ones contested in the upcoming election. Furthermore, the Supreme Court would likely get the case for their resolution by late March. By prior Supreme Court decisions, this would give the courts time to approve new districts while giving state the ability to hold a fair election with informed voters when early balloting began in September. 

The Supreme Court might still reject Virginia’s new districts. But in the Texas case, they made clear super partisan redistricting was not grounds for constitutional rejection.

This would seem to leave them with only the timing issue. As I said earlier, the questions of state law would have already been decided according to precedent. 

The alternate strategy proposed here is again admittedly a longshot. The legal foundation is solid, but nonetheless, we are now in uncharted state and federal constitutional waters. It is the unique responsibility of the GA to protect the interest of Virginians. This includes protecting their rights from being diluted by the actions of other sovereign states. Surely the states-rights party of President Donald Trump can’t disagree with that. 

Thus the simultaneous usage of alternative paths makes sense. This is especially true since the current path is seemingly a dead end. Therefore, the alternative path is worth pursuing on a risk v. reward basis. It is the only hope to avoid the timing issue that the Supreme Court warned about in the Texas decision. 

Paul Goldman is former Chair of the VA Democratic Party, a former candidate for mayor of the City of Richmond, and author of “Remaking Virginia Politics.”