Top Virginia Democrats have decided against exercising a controversial procedural end run around last week’s state Supreme Court ruling that struck down their redistricting, which wiped away a gain of four House seats, the Democratic leader of the state Senate told The New Republic.
The decision—which nixes a complicated idea, discussed over the weekend by Democrats, to replace the state Supreme Court and get the case reheard—is likely to anger rank-and-file Democrats who had hoped the party would respond aggressively to the ruling, which has made it more likely that Republicans hold the House this fall.
The decision also contrasts sharply with moves undertaken by many GOP state legislatures in the South, who are aggressively gerrymandering their states with wild abandon to erase decades-old majority-majority seats from existence, after the U.S. Supreme Court struck down a key Voting Rights Act protection against racial gerrymanders.
“As a practical matter,” Virginia’s state Senate Majority Leader Scott Surovell said in an interview, the move “would not be capable of being implemented” given the “time frame.”
The decision effectively kills off hopes of getting back the four House seats that Democrats had moved into their column by pulling off a victory in last month’s referendum, which redrew the state’s House map. Last week, the state Supreme Court struck down the new map, wiping away that potential four-seat gain.
But over the weekend, many Democrats were heartened by an idea, floated by The Downballot, that could potentially save those four seats. The idea was that the Virginia legislature and governor could lower the retirement age of the state Supreme Court judges to remove them, replace them with new judges, and then get the court to rehear the case and decide it in their favor, restoring the lost map.
Yet Surovell insisted in an interview with The New Republic that the plan is unworkable. He cited a May 12 deadline set by the state Department of Elections for having congressional maps entered into the state’s election system. That’s necessary in order to be prepared for the congressional primaries set for August 1, for which early voting starts in mid-June.
That May 12 deadline would not leave enough time to execute the end run, Surovell said. The tactic would involve state legislative votes lowering the retirement age for judges followed by a new hearing of the case and other associated procedural arcana.
In a revelation that will dismay a lot of Democrats, the problem appears to be that the voting system has not been updated recently enough to make faster entry of the new maps possible (it’s currently being updated). If this ends up costing Democrats the House—which is unlikely but not impossible—the recriminations will be severe.
“Because the technology is so old, it takes a lot of time to input new districts into the computers, to ensure that people are assigned the correct ballots and that voting is not completely chaotic in November,” Surovell told me.
Democrats were taking the option of retiring judges seriously. Over the weekend, The New York Times reported that top Virginia Democrats had discussed the plan with House Democratic leader Hakeem Jeffries. Those discussions were inconclusive.
But Surovell told me he’s discussed the situation with Jeffries and with Virginia Governor Abigail Spanberger. And Survovell confirmed that in the conversation with Jeffries, he ran through all these obstacles.
The loss of those four Virginia seats will unquestionably make it harder for Democrats to win the House, though success is still probably likely. According to calculations by G. Elliott Morris, under the most likely scenario for GOP gerrymandering, Democrats now must win the national popular vote this fall by nearly three points to win the House. Under a doomsday scenario in which Republicans gerrymander to the fullest extent possible, Dems would have to win the popular vote by four points. The Times’ Nate Cohn similarly calculates it at four.
It’s plausible that Democrats could still win one or two of those four Virginia seats anyway, despite losing the new map, if things go well this fall. But at the very least, the failure to go nuclear to get those four House seats back means the Democrats’ margin for error in winning the House is substantially tighter.
Surovell said that practical considerations weren’t the only thing motivating the decision not to exercise the retirement-age tactic. “Wiping out the entire Supreme Court is an incredibly extreme step to take over a decision you don’t like,” Surovell said.
When I pointed out that the president of the United States has commanded multiple GOP states to maximally gerrymander precisely in order to hold power while his approval rating hovers in the 30s—itself a rather extreme move—Surovell acknowledged the point. But he added that Democrats had successfully passed a hard-fought referendum to redraw the map under fast-moving circumstances. “We went through this referendum to try to protect American democracy,” Surovell said.
Still, many Democrats will look at this situation and note that Republicans keep finding ways around procedural obstacles, while Democrats keep getting stymied by them. After the U.S. Supreme Court killed the protection against racial gerrymanders, it took Tennessee only a few days to wipe out a Democratic district by carving up the Black population in Memphis.
In Florida, Republicans promptly rushed through a map that eliminated four Democratic districts, having zero qualms about it even though it faces substantial legal challenges. Republicans in other Southern states are expected to quickly follow suit, which could give Republicans a net gain of five seats—or possibly six or seven—in the redistricting wars.
When I asked Surovell about this takeaway—that Republicans keep finding ways around obstacles and Democrats don’t—he rejected the premise, noting that the successful referendum resulted in the expenditure of around $100 million. “I don’t think that was insignificant,” Surovell told me, adding that it’s still likely that Democrats will win two of the four lost seats.
Virginia Democrats still plan to appeal the ruling to the U.S. Supreme Court. But Surovell confirmed that even a good ruling would be unlikely to impact this cycle, due to that May 12 deadline. Of course, Virginia and many other Democratic states can redistrict next year in order to offset GOP gerrymanders, and do so in time for the 2028 elections. So, hey: There’s always next cycle, right?
