In the aftermath of the Virginia Supreme Court’s 4-3 (along partisan lines) ruling this past Friday to invalidate the redistricting amendment approved by millions of Virginia voters, I’ve been chatting with Virginia Democratic electeds, politicos, etc. about what (if any) a “Plan B” might look like at this point. I’ve also been watching and reading stuff like the following two posts (both of which seem to be getting shared widely on social media):
- This by NY Times columnist and Virginian Jamelle Bouie (which argues “Three million people voted. A court of four cannot erase that. The right answer is the one Republicans in Ohio and Florida have already demonstrated: you make your ruling, you enforce it yourself. Anything less is unilateral disarmament — and Democrats who won’t fight on those terms should find another line of work.“)
- This by Michigan State law professor Quinn Yeargain (which argues: “A modification of the judicial retirement age could be added to the next budget, which is due by June 30, and would come into effect upon passage. Then, after the bill is approved, the entire court would retire. A new court would then be appointed that could re-hear the case and have the opportunity to issue a different ruling.“)
Last but most definitely not least, I was just reading this new story by NY Times reporter Reid Epstein (“Democrats Search Desperately for a Response After Virginia Map Is Tossed; A private conversation involving House members from Virginia and the top House Democrat reflected the fury and desperation that has gripped the party after Friday’s ruling.“), according to which:
- “Democrats are struggling to respond to a major redistricting setback in Virginia, with some party leaders discussing an audacious and possibly far-fetched idea for trying to restore a congressional map voided by the court but showing little indication they have a clear plan.”
- “The most dramatic idea they discussed — which would involve an unusual gambit to replace the entire state Supreme Court, with a goal of reinstating their gerrymandered map — drew mixed reactions on the call, said the people, and it was not clear that it would even be viable, or palatable to Gov. Abigail Spanberger and Democrats in the Virginia General Assembly.”
- “Scott Surovell, the majority leader of the Virginia Senate, declined to comment on Saturday evening. Don Scott, the Speaker of the state House of Delegates, said in an interview that he had not spoken to Mr. Jeffries or members of the congressional delegation about the multistep proposal that came up in the discussion.”
- “Ms. Spanberger would have to sign off on any legislation that lowered the judicial retirement age. She has not been briefed on the proposal, the people involved in the discussion or briefed on it said. Her spokeswoman, Libby Wiet, declined to comment.”
- “The first step in the process, as discussed on the delegation’s call, would be to invoke a January ruling by a circuit court judge in Tazewell County, Va., that said the 2026 constitutional amendment effort to redraw the maps was invalid because county officials did not post notice of it at courthouses and other public locations three months before a general election. Democrats would aim to use that ruling to seek to invalidate the earlier constitutional amendment that created the state’s independent redistricting commission by arguing that courthouses across the state did not post notice of it at the time. That would give the legislature the authority to enact a map of its choosing.“
- “Representative Suhas Subramanyam, a Democrat who represents Loudoun County, Va., said in an interview that he supported doing whatever was necessary to preserve the map voters approved in last month’s referendum — including replacing the state’s Supreme Court justices.”
So here are a few thoughts on all of this.
- First, as Sam Shirazi said in his grand finale podcast yesterday: “Virginia Democrats, you know it’s easy to kind of get bitter and blame the courts and…when something like this happens, there’s a lot finger pointing, there’s a lot being upset. And that, it makes sense. I mean, that’s a human reaction to something like this if you’re on the Democratic side. However, it’s also important not to dwell on this, because the reality is it happened and you’ve got to move on and you’ve got to figure out, ok what’s our Plan B, because this was your plan A and it didn’t work out. And so you’re going to have to figure out what are going to do after this?
- What I’m hearing from the Virginia Democrats I’ve been chatting with is a high degree of skepticism about some of the ideas being floated around out there, such as simply ignoring the SCOVA ruling (I can’t imagine any Virginia Democrats would support that, honestly, as frustrated as everyone is) or basically creating an entirely new SCOVA by retiring the justices and putting new ones on there in the next month or so (again, I’m hearing no takers for that idea, other than maybe Rep. Suhas Subramanyam…but clearly, that NY Times article indicates some proverbial “wheels are turning,” as Democrats search angrily, even desperately, for a way out of this disaster).
- Personally, I’m not necessarily against any of the ideas being floated, given the completely unprecedented and dangerous territory Republicans have brought us to, but I also tend to agree with Sam Shirazi that the #1 priority (aka, Plan B) should be to focus on winning as many US House seats this November as possible, certainly VA02 (almost certainly Elaine Luria vs. Jen Kiggans) and also VA01 (most likely Shannon Taylor vs. Rob Wittman); plus try to win VA05 (almost certainly Tom Perriello vs. John McGuire) as well.
- I’d strongly support getting rid of the moronic, fatally flawed redistricting amendment that’s already in the Virginia constitution, and which saddles us with a completely unworkable, 100%-doomed-to-failure/guaranteed-to-deadlock “bipartisan redistricting commission.” I mean, obviously, Democrats never should have fallen for this steaming crap in 2020, but unfortunately, most Virginia Senate Democrats, as well as a handful of Virginia House Democrats, DID fall for it, gleefully cheered on by Virginia Republicans, who were rubbing their hands with glee at Democrats unilaterally disarming – UGH! So if there’s any way to get this thing out of the Virginia constitution, preferably before 2028, Virginia Democrats should strongly consider doing so.
- What I continue to not fully understand is how Virginia Democrats didn’t understand that the Virginia Supreme Court had four Republican partisans, constituting a majority of the seven justices, and that they would rule in a partisan manner, just like the US Supreme Court did in 2000 in the infamous Bush v Gore case, as well as in their gutting of the Voting Rights Act, etc. At this point, seriously, there are actually still Democrats out there who believe that we can trust MAGA judges to follow the law and the constitution? If so, what are they smoking? LOL
- As one Virginia Democratic operative said to me this morning, “Obviously, we don’t reappoint that jerk to the VA Supreme Court and, frankly (and I hate this) those appointments need to be a lot more partisan. We are a Dem state and we need a Dem Supreme Court. Nothing, apparently, is outside of partisanship so here we are.” And “I think our voters will be more willing to consider drastic measures like another referendum or…eliminating bipartisan redistricting. For now, everyone (and I include lots of out of state people and groups) should empty their wallets for Tom, Elaine and Shannon (maybe also Beth Macy but not sure that is remotely realistic).”
- Of course, we have to be aware that if we take radical steps in Virginia to fight back against Republicans’ anti-democracy, anti-voting-rights, etc. push, it’s possible that they’ll appeal to the US Supreme Court, and suddenly that same Court which previously said they’re not going to get involved in states’ decisions on redistricting will….very much get involved? Something to keep in mind as we consider our options.
P.S. This should go without saying, but in January 2027, Republican SCOVA Justice D. Arthur Kelsey will be outta there, and needs to replaced by a rock-solid Democrat. Then in March 2028, Republican SCOVA Justice Stephen R. McCulloug will also be outta there, and ALSO needs to be replaced by a rock-solid Democrat. Oh, and in January 2029, Republican SCOVA Justice Teresa M. Chafin…same deal, basically. At that point, Dems should have a 6-1 SCOVA majority.
