Where are we at this point with the proposed new Virginia redistricting amendment? There’s a lot going on, and it can get pretty confusing. Fortunately, super-sharp (and well-informed) Virginia-based attorney Sam Shirazi’s got us covered – to wit, check out his new “Federal Fallout” podcast, “Redistricting Lawsuit: GOP’s Only Plan?” I strongly recommend listening to the entire thing, but if you just want a few highlights/key takeaways, see below (with my comments in bold/green following what Sam Shirazi has to say).
- First of all, “to set the stage, the Democrats in the General Assembly are full steam ahead in terms of trying to have a referendum this year in Virginia on redistricting. They have proposed a bill that would set the date of the referendum as April 21st. And they have also… given their proposed language for what should go on the ballot in terms of the question for the referendum.” (That’s about three months from now, with early voting 45 days before April 21…so about March 7 – six weeks or so from now? That’s obviously not much time to ramp up campaigns for or against, and it’s going to take a lot of money to communicate with voters.)
- “… if that gets passed, then the next step would be to actually enact a new map in Virginia, including moving the primary deadlines so that the elections could happen this year under the new maps. The one thing that we are still waiting on from the Virginia Democrats is what their proposed map is going to look like.” (And the big question in that regard is whether Dems will go for a 10D-1R or 9D-2R map. Hopefully, we’ll know on or before next Friday.)
- “… in terms of running a redistricting referendum campaign in basically three months, the Republicans are not in a good place. I think they know that. I don’t think they really or have a plan if they have to run a referendum campaign…the Virginia Republicans’ position in that they don’t think they really need a strategy for the referendum campaign because they seem pretty confident in their legal position in this lawsuit that they brought. And you know honestly, it could be wishful thinking.” (Yeah, I’m with Sam Shirazi on this; it seems like wishful thinking on Republicans’ part to pin all their hopes on the courts, specifically the Virginia Supreme Court. It’s also kind of ironic, as Republicans always like to rail against “activist judges” when it’s anything progressive, liberal, etc., but they’re 100% fine with “activist judges” if they’re “activist” on behalf of Republicans or right-wing causes. Same thing with how they rail against federal law enforcement when the enforcement is being done against right-wing militias or whatever, but they’re totally fine with federal law enforcement being used in a heavy-handed manner in Minneapolis, for instance.)
- “It really boils down mainly to Virginia state constitutional law. There might be a small federal angle to this, but generally this is more of a state issue. I think the highest court that will hear it is the Virginia Supreme Court, and it’s unlikely to really be decided by the federal courts.” (I hope Sam Shirazi’s right about this, because the US Supreme Court is a bunch of right-wing hacks – six of them, anyway – and I don’t trust them on ANYTHING; they just make up whatever b.s. constitutional argument for whatever they want to do for ideological or political reasons.)
- “The Republicans have brought a lawsuit in Tazewell County in Southwest Virginia. That’s a deep red county. I think clearly they did what’s called forum shopping. They wanted to pick where they thought they’d have the strongest chance of winning at the lower court level…essentially the question is based on the state constitution and then a specific provision of the state law under the state constitution…any amendment has to first pass the House of Delegates and the state Senate in one session. And then it says that amendment will be referred to the General Assembly at its first regular session held after the next general election of members of the House of Delegates...that phrase, after the next general election, is really the crux of this legal issue. Because what the Democrats are arguing is that language is very clear…And that’s basically what happened. You know, the Democrats, they passed this bill essentially the week before election day. Election day happened, they won. And then in January, they passed it again. And so the logical reading of this without any sort of overthinking about it is. You pass it before the election, and then you pass it after the election. And that’s kind of the plain reading of the state constitution. It’s pretty clear about that.” (This part of the Republicans’ argument is almost certainly going to lose in court, because as Sam Shirazi correctly explains, the constitution is very clear about this, at least if you just look at the plain language. As Sam Shirazi says, “I think if that was it, if that was the entire case, it would be pretty clear cut and it wouldn’t be super complicated.”)
- “However, it gets even more nuanced because there is a provision of the state law, not the state constitution that kind of throws a wrench into everything…it sounded like the [Tazewell] judge was sympathetic…I’m going to quote from the statute. It says, quote, every clerk of the circuit court shall complete the posting required not later than three months prior to the next ensuing general election of members of the House of Delegates, end quote…there is some tension here where it looks like the state law is maybe in conflict with what the Democrats were doing. However, it gets even more complicated. And as you can see, when you’re a lawyer, things tend to get up complicated and one side will pick something up and then the other side will pick something up. So I went back and I looked at the old Virginia Constitution...that language is in the 1902 Virginia Constitution, but that language is not in the 1971 current version of the Virginia Constitution. So clearly, that three-month requirement was removed from the Virginia Constitution and it is no longer there. However, it is still in the state law. And what the Democrats are arguing is you know that random provision of the state law, which is kind of buried in the state code, it’s basically about the duties of the House of Delegates clerk and the local circuit court clerks, that essentially was not supposed to be in there. was honestly just a mistake that it was not removed because no one updated the code after the constitution was changed. And so it’s really essentially a dead letter, if not just something that is not a requirement on the House of Delegates… What’s controlling is the state constitution. Because remember, like this is just basic legal principle. The constitution is always higher than the law. And so if there’s some inconsistency or there’s some tension, the constitution will trump the law.” (I’m not a lawyer, but it sure seems like the constitution does, indeed, trump statute, especially a statute that probably should have been removed, but wasn’t – quite possibly by mistake/oversight. I mean, if the VA Supreme Court prevents Democrats from bringing this constitutional amendment to voters because of THAT, then they really are a bunch of Republican partisan hacks. But I find it hard to believe that they’ll do that. And hopefully, as Sam Shirazi points out, the VA Supreme Court is “little c legal conservative,” ergo “very textualist.” And yes, as Sam Shirazi concludes, “if you’re a textualist, the state constitution is very clear. The Democrats didn’t need to do this you know three months before,” just “pass it in one session, there’s an election, after that election, you pass it again. And so it’s pretty straightforward from a state constitution standpoint…”)
- “And I could see the Virginia Supreme Court writing an opinion where they’re basically like, This is a little bit ambiguous. There’s some tension here. We’re going to go with the language the state constitution because clearly the state constitution was changed from 1902 to 1971… I do think the Republicans are really hopeful that this is going to get them out of it. Essentially, they’re hoping the Virginia Supreme Court bails them out and they don’t actually have to run a referendum campaign…If they rule for the Democrats, wouldn’t be a huge surprise and things will just kind of go full steam ahead. I think if they rule for the Republicans, that would be a pretty big shocker and I think would reset the midterms in Virginia.” (Exactly; again, Virginia Republicans are putting all their hopes in what they’d normally refer to as “activist judges,” who they usually decry, but in this case view as their main – and probably ONLY – hope of killing Virginia redistricting that leads to the defeat of Rep. Rob Wittman in VA01, Rep. Jen Kiggans in VA02, Rep. John McGuire in VA05, and possibly even Rep. Ben Cline in VA06. So that’s what’s at stake – a lot!)
So…fascinating stuff from Sam Shirazi, VERY helpful to understanding this complicated situation. Thanks again to Sam Shirazi for doing this; much appreciated!
P.S. Also, at the end of this podcast, check out Sam Shirazi’s analysis of the constitutional amendment on ex-felon disenfranchisement…also very interesting and informative.
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On a related note, check out what VA Senate Majority Leader Scott Surovell had to say in a Senate Finance Committee meeting Thursday afternoon.
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