Transcription
Last month, as you are no doubt well aware, Virginia voters voted to redistrict. They took the old congressional map, which was more or less an even split between Republicans and Democrats, 6-5, I think, Democrats and Republicans, and replaced it with a map that left the Republican party with just one seat located in the general southwest region of the state.
This was part of a national response by Democrats to a Trump-led effort to redistrict the fragile Republican majority in the House to protect it through gerrymanders in red states. The House majority, it's just two people, three people, I think. And in the absence of any attempt to improve the president's popularity and in the absence of any attempt to kind of squeeze more seats out of these states, that majority is probably going to go down in November. And so last year, the president announced that he wanted Republican-led states to engage in even further gerrymandering, beginning mid-decade redistricting cycles to try to get to this outcome.
And it seemed initially that this was a bust. I mean, this was my view. It looked like a lot of Republican states were not going along. They recognized that if there was a large enough wave, that this gerrymandering might end up actually disadvantaging them. And then Democrats began to retaliate in kind, first in California and then in Virginia. And after the referendum last month, it looked like Democrats had won this iteration of the gerrymandering wars.
But then the Supreme Court announced its ruling in *Allen v. Milligan*, which gutted section two of the Voting Rights Act and gave Republican-led states in the South the opening to erase their majority-minority districts if they so pleased under a guise of partisan gerrymandering. "You're not racially gerrymandering people out of representation. You're merely partisan gerrymandering people out of representation. And that's different, constitutionally."
Apparently, a few days later, Indiana Republicans, five of them, lost their primaries. These were Republicans who had projected the redistricting push last year. President Trump rampaged against them, promised retribution, and then they lost their primaries. They won't be returning to the state legislature, thus demonstrating the president's grip on his base and sending a warning sign to other Republican states that may not want to engage in this. And I don't think it's a coincidence that just today, and I'm recording this on Friday, May 8th, South Carolina announced that it would be pursuing, uh, some kind of change in its maps.
The latest blow comes here in Virginia, where the state Supreme Court overturned the referendum results, invalidating the election on what is basically a technicality. Not even basically a technicality, it is a technicality. Let me explain. In Virginia, the process to amend the state constitution has three stages. On the first stage, the legislature must vote on an amendment. Then there must be an intervening election. After that intervening election, the amendment has to be voted on again by the legislature, after which point it can go to the voters on a referendum, and then they have to approve it. They either approve it or they reject it. That's the process.
Virginia Republicans have been filing suit this entire time. And in their lawsuit attacking that process, they said that the initial vote, that initial legislative vote, happened too soon before the November election. The November election happens, that's supposed to be the intervening election. But what Republicans argue is that because early voting was already taking place, the election was already ongoing, it doesn't count. It happened too soon. And if that November election doesn't count as an intervening election, then the rest of the process doesn't count either. It's all invalid.
Virginia Democrats argue that no, the election is the election day. That's what it says in the Constitution. That's what it says in the statute. And instead, those 45 days of early voting are before the election. And so, this was a perfectly fine process. And in a 4-3 decision, the Virginia State Supreme Court, notably the Republican appointees on one side and the Democratic appointees on the other side, stated that in fact, the election comprises the 45 days of early voting before election day. And so the process was, uh, not followed. There wasn't sufficient time, uh, before the election. There wasn't sufficient separation. And so, hey, you got to throw this out. Doesn't count. The court has invalidated the referendum result.
Now, the reaction from Democrats has been actually kind of mixed. The attorney general of Virginia was immediately like, "We're going to find some way to deal with this, appeal this." And Hakeem Jeffries, interestingly enough, was like, "We're going to find some way to challenge this." But the speaker of the Virginia House of Delegates, who is a Democrat, was like, "Oh, we're going to accept the court's ruling." And Abigail Spanberger, the governor, said that she was disappointed, but didn't voice anything about challenging the ruling.
And I think this is a mistake. I think this is a huge mistake. I think that this is the exact wrong approach Democrats should be taking. And I think the fact that this was a reaction of key Democrats is a testament to the reasons that people are so frustrated with the Democratic party and feel that it just is incapable of standing up for their rights. I think this for two reasons. And I do recommend that you read the ruling and the dissent. It's not that long and you don't have to be like a legal wizard to understand it. It's pretty straightforward. But I think the dissent has like the majority's number.
The dissent points out that, quote, "The majority has broadened the meaning of the word election as used in the Virginia Constitution to include the early voting period. This is in direct conflict with how both Virginia and federal law define an election." As they note, the statute itself distinguishes early voting from the election itself, defining it as a period prior to and immediately preceding the election. You wouldn't use that language if you're, you wouldn't use that language in the law, right? If you were talking about the election and the early voting period as being a single thing, but the law treats them as distinct.
If you treat them as the same thing, the dissent points out, you create this insane paradox. Quote, "Applying the majority's definition of election creates a causality paradox. An election is a process that begins with early voting, but early voting must precede an election by 45 days." That's sort of what the statute says about early voting. The majority's definition creates an infinite voting loop that appears to have no established beginning, only a definitive end, election day.
There are some other complications here. The Virginia Constitution says that on election day, on when there is an election, you can't be asked to sit on a jury. You can't be asked to get involved in the kind of judicial process. If you're a criminal defendant, sure. But otherwise, you're kind of, it's, you're off limits during the period of, of the election, during the period of voting. But if an election is the whole 45-day period, perhaps even a whole 90-day period, then for 90 days, state courts can't kind of can't do anything. They're frozen. And that is absurd. That's obviously not the way it works. And you can avoid that outcome if you hew to the definition that the statute itself uses, that an election is election day, not the early voting period. But if you expand it to the early voting period, you're beginning to create these absurd things that don't really make any sense.
And this is where the dissent kind of ends. I mean, this is, and this is where the dissent hits things quite hard. The dissent points out that much of the majority's opinion is going through dictionaries and all kinds of things to determine the meaning of the word election, but the statute is quite clear on what an election is. It refers to election day, and the majority doesn't really engage with the statute, with the text. And when you're doing legal interpretation, the text doesn't have to be the only thing, but it typically is the first thing. You just read what it says and see if there's any ambiguity there. So, like I said, this is an absurd ruling. It's a ruling that you can obviously challenge on its own grounds and you can obviously, I think, fairly portray as pure partisanship.
Because the other thing is that I don't think there's anyone in the world or anyone who pays attention to this stuff who thinks that if the shoe were on the other foot, if Republicans were engaged in trying to redistrict using the referendum process, that the court would have ruled the same way. I don't think anyone thinks that.
This gets to the second reason why you shouldn't just acquiesce in the face of this. And that is a referendum isn't just any other vote, right? A referendum on a constitutional amendment is just not any other vote. It is a vote of the people in their capacity as sovereign. And sovereign simply means like ultimate authority. The constitution, but the federal constitution and state constitution, to get their authority from the fact that they're creations of the sovereign people, ratified by the sovereign people. And the courts, which are meant to enforce these constitutions, also get their power from the fact that they are creations of the sovereign people. So what business does a court have overriding the people and their capacity as sovereigns? And that's what the referendum is. It's the people acting in their capacity as sovereign. The court may think that it can override the people in their capacity as sovereign, but it can't. It can't do that at all.
It can certainly issue a ruling on this technicality and that can be a nice curiosity, but in terms of the result, I don't think it matters. I think it has no bearing. If the people didn't want this, if they felt that there was something rushed or inappropriate about this, they could have said no. Hell, the court could have said no because it was asked earlier in the year if this referendum were even legitimate. The court said, "Sure, let it go through." And the court only is deciding that none of this was legitimate. Now, they've seen the results. And it's noteworthy that in the majority's opinion, there's this weird section where they say, "Oh, well, the margin of victory wasn't that large. It was just a few hundred thousand votes." And the majority says this has no bearing on their decision. But it obviously does. It's the majority saying, "We don't think you got enough votes to justify the action you've taken." That's not their business. That's not their job. That's not their remit.
And so given the absurdity of the ruling, in the way that I think this is a clear overstepping of judicial boundaries, this is what we describe as juristocracy. Judges not acting as mediators, not acting as judges, but acting as political actors who are curtailing other political actors, not for any actual legal reason, but just because they would prefer a different outcome. Given those two things, the appropriate response for Spanberger, for the House Speaker, for any Democrat, is to say, in effect, "They made the ruling, they can enforce it. And we're going to continue with these maps because 3 million people voted. They voted and we got a result. And those votes matter. That result matters. And no court, seven people, four people cannot invalidate the decisions of a couple million. They can't do it. It's not their place, not a power that they have, especially not the people acting in their capacity as sovereign. And their capacity is people who can make and unmake a state constitution."
So the proper response to this is to say, "Hey, you made your decision. You enforce your decision." The proper response is to do what Republicans in Ohio and Florida have done, which is just ignore court decisions, ignore even state constitutions and pursue this project because anything else is unilateral disarmament. That's what it is. And I think that if Democrats lay down and refuse because of some commitment to norms that are no longer in operation, because of some commitment to a notion of fair play that is no longer in operation. If in this game of hardball they refuse to play in turn, then you just got to get rid of them. I think that's, I think that is, that to me is the, the baseline for support now. Are you willing to fight? Are you willing to stand up for people's rights? Are you willing to allow unelected judges and unaccountable and runaway state legislators and power-hungry presidents gobble up all, gobble up all the power and leave tens of millions of Americans at the mercy of would-be authoritarians? Are you going to do that? Because if you are, if that's where your inclination lies, then I think you should find another job and make way for people who are actually interested in trying to save this democracy from its enemies.