Yesterday, when Virginia state Sen. Henry Marsh (D) was away from the state capitol to attend President Obama’s inauguration, Virginia Republicans rushed through a gerrymandering bill that that could potentially transform the evenly divided Virginia senate into a 27-13 Republican majority. The Virginia senate is currently split 20-20 between Democrats and Republicans, and Lt. Gov. Bill Bolling (R) indicated that he would have opposed the gerrymander if given the tiebreaking vote. Thus the bill would not have passed if Republicans had not used Sen. Marsh’s absence to push it through when a key opposing vote was absent.
This is not an isolated incident. A memo from the Republican State Leadership Committee openly bragged that U.S. House Republicans kept their majority because of gerrymandering, and, indeed, these gerrymanders were so effective that Democratic House candidates would need to win the national popular vote by more than 7 points in order to take back the chamber. Meanwhile, top Republicans are also pushing a plan to rig future presidential elections by reallocating electoral votes in blue states to the Republican candidates for president.
Nevertheless, it is not certain that the Virginia GOP’s underhanded move to gerrymander the state senate will survive contact with the courts or the Department of Justice. Although the fate of any challenge to this partisan gerrymander is uncertain, here are four ways the gerrymander could still go down:
- No Mid-Decade Gerrymanders: The Virginia Constitution provides that “[t]he General Assembly shall reapportion the Commonwealth into electoral districts in accordance with this section in the year 2011 and every ten years thereafter.” When a constitution specifically instructs a legislature to take a particular action or grants a specific power to those lawmakers, courts sometimes read it to implicitly prevent them from taking other actions. Thus, when the state constitution instructs Virginia lawmakers to redistrict every ten years, it implicitly instructs them not to engage in mid-decade gerrymanders, and the new maps are invalid. The Virginia Supreme Court has not weighed in on this question, but a Virginia trial court concluded in 2012 that one purpose of this provision in the state constitution was “to preclude ‘politically convenient redistricting whenever one political party or the other might gain the upper hand and find it attractive to redraw political boundaries to consolidate power.’”
- Voting Rights Act: The Voting Rights Act not only forbids state voting laws which have a discriminatory impact on minorities, Section Five of the Act also requires new voting laws in some parts of the county to “pre-clear” those requirements with the Department of Justice or a federal court in Washington, DC before they can take effect. Much of Virginia remains subject to Section Five, so the maps could be stopped if they diminish minority voting strength in the covered areas. There’s only one problem: the conservatives on the Roberts Court are widely expected to strike down Section Five before the Court adjourns this June.
- What’s Left Of The Voting Rights Act: Even if the conservative justices strike down Section Five, Section Two of the Voting Right Act still prohibits redistricting that dilutes minority voting strength. To the extent that the new GOP maps dilute the minority vote, they could be subject to a lawsuit under Section Two. Such a lawsuit, however, would ultimately appeal to the same Republican-dominated Supreme Court that is expected to strike down Section Five.
- The U.S. Supreme Court Could Actually Do It’s Job: As a final note, the entire purpose of partisan gerrymanders is to weaken the voting power of people who hold one viewpoint (in this case, Democrats) while strengthening that of people who hold an opposing view (in this case, Republicans). This is a textbook violation of the First Amendment’s prohibition on viewpoint discrimination. Nevertheless, the Supreme Court’s conservatives have refused to even consider cases challenging partisan gerrymanders, although Justice Kennedy suggested that his opposition to gerrymandering lawsuits is not entirely absolute.