Virginia Democrats made a Hail Mary attempt to the U.S. Supreme Court on Monday, asking the justices to revive the state’s Democratic-friendly congressional map.
State Attorney General Jay Jones sought to set aside the Virginia Supreme Court ruling last week that struck down the Democrats’ map, finding that the legislature broke procedural rules in rushing it to voters.
Mr. Jones said the state court misinterpreted the meaning of “Election Day” in its ruling. He said the federal justices must correct that.
“By forcing the commonwealth to conduct its congressional elections using districts different from those adopted by the General Assembly pursuant to a constitutional amendment the people just ratified, the Supreme Court of Virginia has deprived voters, candidates, and the commonwealth of their right to the lawfully enacted congressional districts,” he said in his brief.
His filing asked the justices to keep the Democrats’ map in place and to give the high court a chance to decide whether to take up the case. Chief Justice John G. Roberts Jr. gave Mr. Jones’ opponents until Thursday to file a response to the petition.
The U.S. Supreme Court also weighed in with a ruling Monday that boosted Alabama Republicans in their push to redraw their state lines to erase a Democratic-held district.
The justices, in a brief order, erased a lower court decision that had forced the state to use a map with two majority-Black — and thus Democratic — congressional seats. The high court cited its decision late last month in the Voting Rights Act case from Louisiana as the reason for erasing the racial gerrymander.
Getting the justices involved in the Virginia case, however, will be a much tougher task for Democrats, given that the issue there was state election and referendum procedures.
At stake are as many as four extra U.S. House seats that Democrats could gain if their map prevails. They envision a 10-1 split in the state delegation, up from the current 6-5 majority.
The legislature, controlled by Democrats, put the map up for a referendum last month, and it narrowly prevailed.
The state Supreme Court said the legislature violated the state constitution’s requirement that there be an intervening election between the two votes in the General Assembly to put the measure on the ballot.
In a 4-3 decision, the court held that because early voting had already begun last fall, an election was underway, and there was no intervening election.
Mr. Jones, echoing the state Supreme Court minority, said that was a distortion of Election Day, which they said under state law refers only to the specific day when voting is supposed to conclude.
He said federal law also treats Election Day as a single event, so the justices have reason to get involved in what had been seen as chiefly a state matter.
The lawsuit is one of several last-ditch ideas that had been floated in the wake of last week’s decision.
Another idea was to have the legislature impose a new, lower mandatory retirement age on the state Supreme Court, which would automatically oust the members and give Democrats in the legislature a chance to fill those seats and secure a new ruling.
In addition to turning a political war into a nuclear attack, that idea would also test the state’s calendar, which envisions August primaries, with early voting beginning as soon as June 18.
Election administrators must finalize those ballots by May 28, Mr. Jones told the justices.
“This court should not permit the Supreme Court of Virginia to short-circuit that process by overturning the commonwealth’s lawfully adopted maps at the last minute,” he wrote.
The state Supreme Court majority, in its ruling last week, pointed out that Mr. Jones himself created the time crunch.
He had urged the state court to wait until after the April 21 referendum before issuing its ruling.
The redistricting was ignited last year by Texas, where the legislature redrew its maps to give Republicans a chance to net as many as five seats. California retaliated with a map, approved by voters, that Democrats hope will net them five seats.
North Carolina, Ohio and Missouri then produced more Republican-friendly maps, and Virginia was supposed to be the great equalizer, erasing those Republican gains.
The U.S. Supreme Court allowed the redrawn Texas and California maps to stand.
Then the justices introduced a new wrinkle late last month when they ruled that states didn’t need to stretch themselves to draw districts favorable to minority voters or to Democrats, unless there was clear evidence of current discrimination.
That decision overturned a Louisiana map that had carved out two of the state’s six seats for Black voters.
Republicans are now shooting for a map that would reduce that to a single Black — and Democratic — seat.
Monday’s high court action in Alabama could erase one of that state’s two majority-Black seats, giving Republicans a possible 6-1 advantage there.
The court said the logic of the Louisiana decision applied equally in Alabama.
Justice Sonia Sotomayor led the court’s three Democratic appointees in dissenting.
Justice Sotomayor pointed out that the high court just a few years ago had blessed the idea that Alabama should have two majority-Black “opportunity districts.” She said the court, in the Louisiana case, affirmed that the previous Alabama case remained good law.
She also said it was too late in the process to upend the state’s map anyway.
“The court today unceremoniously discards the district court’s meticulously documented and supported discriminatory-intent finding and careful remedial order without any sound basis for doing so and without regard for the confusion that will surely ensue,” she wrote.
