The Petty Ruling in Virginia
The state's Supreme Court's ruling was basically over a dubious technicality.
When the ruling came down yesterday, nullifying the districting referendum in Virginia, I did what I always try to do when a court rules: assume that there was valid legal reasoning until such a time as I have a chance to read the decision and see what experts in the law have to say on the matter. I will readily admit that I am not a lawyer, and I am certainly not an expert on the laws and constitution of the Commonwealth of Virginia.
Well, I read the ruling last night, and it drained away all my benefit of the doubt and goodwill.
I am not quite sure if “farce” is the right word here, as I am trying to maintain an analytical approach, but it likely fits. The ruling is a blatant exercise in justifying the preferred outcome of the majority of the court and certainly is the opposite of judicial restraint, especially in the face of a process that involved the voters of the state.
The ruling itself is almost 30 pages long (46 if you include the dissents). While there is a remarkable amount of discussion of gerrymandering and what the word “election” means, it all boils down to the following.
Under the state’s constitution, the legislature had to pass the proposed amendment twice before it could go to the voters. Once before the general election, and once after the general election. The legislature did this, but because the first time they passed it, early voting had started, the court ruled that it was not passed before the general election.
That’s it.
That’s the core of the ruling.
The court’s majority interpreted “before the election” to mean “before any voting has taken place.”
There are, in fact, multiple pages dedicated to the question of what “election” means. I will confess to not being willing to engage that text, save to note that it is hardly an unreasonable interpretation, indeed, to say the “election” takes place on election day, even if voting has commenced before Election Day. Certainly, it seems more than reasonable for the Justices to have given the benefit of the doubt to the state legislature for thinking so, especially since Article IV, section 3 of the Virginia Constitution states (emphasis mine): “The House of Delegates shall consist of not more than one hundred and not less than ninety members, who shall be elected biennially by the voters of the several house districts on the Tuesday succeeding the first Monday in November.“
That seems to me to define when the “election” is, as far as the constitution is concerned.
One of the dissenters helps put this in perspective in noting that Article IV, Section 4 provides: “Any person may be elected to the Senate who, at the time of the election, is twenty-one years of age…”
Anyone reading that does not think it means that a candidate has to be twenty-one when early voting starts. The obvious meaning is election day.
I understand that the logic behind having a double proposal in the legislature with an intervening election is to allow the electorate the ability to send signals during that intervening election. Further, that means that anyone who voted early would not have the chance to have their vote influenced by the first proposal. Indeed, had the ruling focused solely on this fact, I might be less frustrated with it. But the majority opinion spends roughly a third of the text pontificating about the history of gerrymandering, and making it clear that it doesn’t like it.
It notes:
This case comes to us with a historical background. It does not determine the outcome of the legal disputes presently before the Court, which are entirely procedural — but it does explain the context in which these disputes have arisen.
If said background “does not determine the outcome of the legal dispute,” then why spend so much time on it?
I would note, too, that the first paragraph of the opinion notes that the case is about “a proposed constitutional amendment that authorizes partisan gerrymandering.” Given that SCOTUS has greenlit partisan gerrymandering with the brightest green light you can buy, it seems pointless to even talk about it, and yet they do. The case simply cannot be about why partisan gerrymandering is bad (even though yes, it is) because it is currently the law of the land.
The opinion dedicates a similar amount of time to the definition of “election” to include history, dictionaries, and pontifications about what normal people might think it means.
The problem with all of this is that it elides plain language in the commonwealth’s constitution and other statutory language in a way that fits their preferred outcome.
I will put it this way: given that the voters ultimately had the say on all of this (until they didn’t), and since the plain language of the constitution focuses the election as taking place on the first Tuesday following the first Monday in November, it is not hard to show a little judicial restraint and not debate the meaning of “election” unless you are looking for an excuse to overturn a referendum in favor of the party you prefer.
Back to the early voting of it all. First, voting, early or not, is the casting of ballots, while an election is the summing of the votes. As such, it is hard to make early voting into “election.” Second, the act of early voting is a matter of convenience entered into freely by the voter, and it means that it is possible that something might happen (such as a scandal) between the time a voter votes early and election day. But that is the chance you take by voting early.
By definition, early voting means trading complete information for convenience. It’s inherent to the process.
Regardless, I am amenable to the rule about double-proposal for an amendment to include a requirement that it be conducted before any voting takes place. There is some logic to that. But such a rule needs to be plainly stated, not inserted ex post facto.
Further, it must be stressed that the citizens of the state did make their preference known. As such, this is nullifcation of the popular will in Virginia on a specific interpretation of a technicality that reasonably could be interpreted the other way, and that contradicts the plain language of the state’s constitution.
And while I know it goes beyond the scope of what the Virginia Supreme Court should be considering, I can’t help but note that all of this is part of a broader set of political maneuvers wherein Republicans can more swiftly divvy up their state however they please, but Democrats jumped through numerous hoops in Virginia only to be told that one of the hoops was not quite high enough off the ground.
I think the ruling is reasonable, in that the legislature effectively made “Election Day” a 45-day period rather than the Tuesday after the first Monday. But I agree that it was an activist ruling, in that the opposite result is equally plausible.
Our Supreme Court is odd, in that justices are appointed by the concurrence of both houses of the legislature for 12-year terms. Despite having become an increasingly blue state, 3 of the judges were appointed when Republicans controlled both houses, one when Democrats controlled both houses, and three with a split legislature. (See here)