Look at the calendar. Amending the state constitution to draw new congressional districts will be a drawn-out process.

by Paul Goldman

I get what Democratic Speaker Donald Scott, D-Portsmouth, wants to do. When I was Democratic Party Chair, I helped create the districts that elected the first Black member of Congress and the first female member. Partisan redistricting for sure. But that was 35 years ago. Virginians overwhelmingly voted in 2021 for non-partisan redistricting. There’s no indication they’ve had a change of heart. 

Speaker Scott is thus understandably leery about being seen as reviving partisan redistricting. He and his allies have come up with a clever approach to the matter. The new Democratic plan is to use the power of partisan redistricting only in response to some other state doing it first to Virginia’s detriment. Thus, his constitutional proposal is one of the weirdest in American history.

Republicans are crying their usual crocodile tears. They would do the same power grab as Scott if they were in the majority. So, I’m not impressed by their insincere Fourth of July speeches or legal opinions from the current AG, whose grasp of constitutional law seems rather sketchy.

That being said, an honest commentator has to say the Democratic proposal is laughable as a matter of constitutional principle. What’s most amazing in this redistricting debate is the lack of understanding of the redistricting- process calendar. I think presumptive Governor Abigail Spanberger has looked at this timeline. She’s staying out of the debate for reasons which will soon be apparent from this timeline. 

November 1. The Democrats pass their redistricting constitutional amendment. 

November 4. Democrats keep control of the General Assembly. 

January 2, 2026. This is the first day to officially start collecting signatures to get on the 2026 Congressional ballot. The signatures will be collected under the existing congressional districts created in 2021 by the Virginia Supreme Court. 2026 is a Congressional election year. As the year starts, the election by law will be held in the existing districts.

January 17,  2026. Gov-elect Spanberger takes office. She has told the public she will take no part in anything to do with super partisan redistricting. But she will need to at least sign laws postponing the congressional primaries and other calendar events already scheduled for 2026 for the proposed amendment to work. There is also a Senate primary since Mark Warner’s seat is up this year. I suppose they’ll have to delay that also. This actually helps Warner. 

Early April: This is the month Democrats are saying a statewide referendum will be conducted on their proposed constitutional amendment. Under current state law, this is the window to hold the required statewide constitutional amendment referendum. But Democrats could change the law. Would Spanberger sign it? One problem with an April vote is going to be the likely low turnout relative to the normal November elections for constitutional amendments. It may seem like cheating to many Virginians.

Mid- April: Assuming the referendum passes, this is roughly the time when Democrats will return to Richmond and say the actions of Republicans in other states have made it necessary for them to exercise their new redistricting power.  They will say they’re doing this reluctantly. They will blame Trump.

May 15: In order to appear open minded, the General Assembly will hold hearings around the state to allegedly seek input before announcing a new redistricting map. Let’s assume therefore they vote on May 15 for the new super partisan Democratic redistricting plan. 

May 16: The new congressional map will then go to Governor Spanberger for her signature. She might have promised not to do super-partisan redistricting. But she will sign the measure. It’s about this time every Virginia governor starts thinking they should run for President. The Democrats in Washington will applaud her. 

SOON THEREAFTER: Virginia Republicans will file a federal court challenge to the constitutionality of the Democratic redistricting plan. We can assume Republicans will try to get a friendly Trump judge. Under federal law, they will ask for the appointment of a 3-Judge Court. These sometimes-controversial ad hoc courts are required for challenges to a congressional redistricting plan. The judges are appointed by the Chief Judge of the United States Court of Appeals court for the Fourth Circuit. I’m assuming the GOP will file in the Western  District. The judges therefore will come from that part of the state. This might turn out to be a lucky break for the Virginia GOP. 

MID-JUNE: Given the importance of electing the Congress in 2026, the court is going to give ordinary citizens and groups a chance to weigh-in. Lawyers need time to write briefs. Remember: Whatever plan the GA passes will need to satisfy federal constitutional principles. Let’s assume therefore, the court issues its opinion in mid-June. Let’s further assume it supports the GA’s proposed electoral map. 

THE NEXT BUSINESS DAY: We can assume Republicans will immediately file an appeal to the United States Supreme Court. By law, appeals from a 3-judge Court must go directly to the United States Supreme Court. The 4th Circuit Court of Appeals is bypassed. In this scenario, the Republicans will ask the United States Supreme Court to stay the decision of the 3 Judge court until they ruled on the constitutionality of the GA’s plan

SHORTLY THEREAFTER: Given that the US Supreme Court has never taken an official position on whether super-partisan redistricting satisfies the United States Constitution, the Supreme Court is going to stay the lower court decision. Thus, for the moment, the ongoing congressional campaign will continue in the existing districts.

MID-JULY: The election for Congress has been going on officially now for seven months. The candidates have collected petitions in the existing 2021 districts. They have crisscrossed these districts running for election. Based on prior decisions, the Supreme Court has been reluctant to interfere in an ongoing election process where voting is soon to start. 

DECISION: Even if the Justices uphold the GA plan, the likelihood is they will Order the November 2026 elections to be held under the districts created by the Virginia Supreme Court in 2021. They will say changing the districts at this late date would create chaos and be unfair to the voters not to mention the democratic process. They will discuss what should be obvious. Early voting starts roughly in mid-September. Therefore, there’s barely two months to hold nomination primaries and allow the public to understand their new districts before General Election voting begins. They will say this shrunken process is unacceptable in a democracy particularly when you have an ongoing election campaign since January. In sum, they will do their usual “balancing of the interests,” My bet is they will say the interest of the public in a smooth, ongoing election process outweighs the power of the Democrats to change the rules because of something the GOP did in Texas. 

One can of course chuckle at the thought of these particular nine judges being concerned about the destruction of democracy. But this is consistent with their rulings in prior related situations, and that of the 4th Circuit. Don’t be surprised if the Supreme Court rules 9-0. 

As the former head of the Virginia Democratic Party, who helped create more Democratic seats for minorities and women than any other Chair in history, I would like to see more Democrats elected to Congress. The current Republican Congress is an embarrassment. They’re not exercising the check and balance on the Executive Branch as the Virginians most responsible for writing our constitution expected. There are supposed to be three equal branches of government. Not one branch where everybody else comes to bow and dance at his golden ballroom. This isn’t Tudor England in the 15th century. Or is it? 

The current US Supreme Court has a different view than I do on constitutional law in many respects. Justice Thomas‘s decisions are particularly baffling. For a self-professed principled conservative, his rulings along with certain other justices make a mockery of fundamental constitutional law. He calls himself a “originalist.” All I can say is his constitutional view is certainly original. 

But I don’t wear one of those black robes created by a former Chief Justice John Marshall. 

I’m writing as a commentator on the intersection of politics and law in the redistricting process. The Supreme Court has previously called redistricting perhaps the most political thing state legislatures do. 

Politics ain’t bean bag, as the old saying goes. But even political hardball must contend with the Constitution of the United States. In that regard, the United States Supreme Court has the final say unless of course we’re gonna go to a new system. I suppose we’re almost there anyway..

In sum, based on legal precedents, I do not believe the current Justices will allow Virginia to change constitutional horses in mid-stream. 

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.”