JONATHAN TURLEY: Virginia Democrats' map scheme faces judgment at the high court
As Virginia heads to the state Supreme Court, Virginia Attorney General Jay Jones (D) will have to up his game a bit. For starters, he will have to actually defend the redistricting resolution as constitutional when prompted. In a recent interview with CNN, even the host of the friendly network expressed frustration that Jones could not seem to get himself to actually defend the dubious language of the ballot measure.
Many of us have expressed skepticism over the process and language of the resolution that passed this week, effectively wiping out all but one GOP district in the purple state.
Virginia was considered the gold standard among states rejecting gerrymandering with fairly divided districts in a state that is divided right down the middle. It then elected Governor Abigail Spanberger, who assured voters that she was adamantly against gerrymandering and then immediately called for the most radical gerrymandered map in the nation after she was elected.
The candidate who declared that "opposing gerrymandering should be a bipartisan priority" rushed a resolution to the voters that would have made Eldridge Gerry himself blush.
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That map passed by slim margin as Democrats moved to wipe out the representation of half of their neighbors, leaving Republicans with just one of eleven districts.
The problem is that the Democrats were too clever by half in crafting a campaign that even the Washington Post declared as shockingly dishonest and misleading for voters.
The deceit began with the language of the resolution itself. While Virginia law requires clarity in such resolutions, the language was obtuse and vague, declaring that it would "temporarily adopt new congressional districts to restore fairness in the upcoming elections." There was nothing "temporary" about the plan, which would continue for years. More importantly, it is unclear what is meant by "restore fairness" in a map that would wipe out virtually every GOP district.
In addition, the process used to rush the resolution to the ballot was abridged and unprecedented. This mess was too much for Tazewell Circuit Judge Jack Hurley who enjoined the map approved by voters. It is now awaiting an oral argument before the Virginia Supreme Court next week.
Jones was, of course, aware of all of this when he received the most predictable question from CNN host Brianna Keilar who quoted the misleading elements cited by Judge Hurley and asked "does he have a point that it’s misleading?"
Jones went into an account of how the "yes side prevailed" and called Hurley "an activist judge." Keilar reasonably followed up, noting "I know that you’re calling him an activist judge, but he is citing the Virginia Constitution and legal experts that we’ve spoken to say what he’s saying is going to create some pretty big challenges for you in court that you will have to overcome." She then repeated the question.
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Again, Jones had that deer in the headlights look and went into a babbling spin: "Well, look, I’m really proud of Virginia. I believe the right to vote is sacred, not just as Virginians, but as Americans. This is the birthplace of democracy."
This exchange went up until, to her great credit, Keilar ended the interview with "I don’t hear you answering the substance of my question."
The problem is that the campaign and the resolution, as the Washington Post noted, is flagrantly misleading and dishonest. Jones relies on the majority on the Supreme Court to shrug away the problems. Democrats are also hoping that justices who have to face the voters themselves are unlikely to negate a popular vote. Indeed, it does not appear that such a vote has ever been overturned in the state.
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If the Court stands with the law and throws out the vote, Democrats could face the ultimate disaster. They just spent a fortune to narrowly pass the resolution. In so doing, they alienated half of the state, who took it rather personally that Democrats were trying to wipe out virtually all of their representation in the state after recently promising never to engage in such gerrymandering. They are not likely to forget this effort and virtually every Democrat in the state fought to pass this resolution. Some of these Democrats have to rely on Republican votes in the purple state to secure statewide office. They are unlikely to force this effort into some memory hole for the victims of the gerrymandering, particularly if the courts also declare that they were acting unlawfully.
Finally, the use of unlawful means to gerrymander a state only further destroys the credibility of the Democratic mantra of being defenders of the Constitution and democracy. The optics are only going to be magnified by an attorney general who was elected by Democratic voters after threatening to kill political opponents and their children. There was no vagueness in Jones’ prior approach to political opponents. His election was viewed as the ultimate triumph of political rage by the very same voters who just effectively negated the representation of half of the state.
In the end, it will be up to the Virginia Supreme Court to "to restore fairness in the upcoming elections." There is no question that this resolution shredded state law and tradition.
The question is whether the justices themselves have the courage to demand more from the Commonwealth of Virginia.