The Virginia Supreme Court issued a brief order Tuesday that had more words in the styling of the case than it did in the substance, but the five words at the end were enough to throw Virginia’s political world into a tizzy of speculation as court-watchers tried to discern some insight into the court’s thinking on redistricting.
“The court denies this motion.”
The main thing to know before we dive into this speculation is that there are multiple lawsuits that have been filed challenging last week’s special election on a constitutional amendment that allows Virginia to redraw its congressional lines. The two main ones have come through a lower court in Tazewell County, where Circuit Judge Jack Hurley Jr. has ruled the election unconstitutional. Weeks ago, the Supreme Court said it would let the election go forward and rule on the legal questions after the vote. We are now after the vote. (For the reasons why the court did this, see my previous column on the 1912 precedent it’s relying on.)
On Monday, the state Supreme Court heard oral arguments in what we’ll call the Tazewell 1 case — this is a group of Republican state legislators who have sued; it’s formally styled Scott v. McDougle on appeal but it’s easier to remember as Tazewell 1. The Tazewell 2 case involves a suit by the Republican National Committee and some of Virginia’s Republican House members. Late last week, as part of that Tazewell 2 case, Hurley issued an order blocking certification of the election. Attorney General Jay Jones appealed.
On Tuesday, the Supreme Court of Virginia, without explanation, issued an order rejecting that appeal. That means Hurley’s order stays in place, and the state is unable to certify the election results on Friday as scheduled.
What’s all this mean? Ultimately, only seven people in Virginia know — the court justices. They will have their say soon enough. Until then, to appease the speculating hordes, let’s look at the options.
Maybe this telegraphs the outcome. Or maybe it means nothing.
Sam Shirazi, an Arlington-based attorney who hosts the Federal Fallout podcast, took to social media to offer two options: “1. Virginia Supreme Court wants to issue full opinion and won’t rush something 2. This is shadow docket equivalent and may give hints about final ruling.” In other words, there’s no point certifying an election that the court is about to toss out.
Shirazi leans toward the first option; those who were on the “no” side last week are hoping for the second.
This could mean a ruling is imminent. Or not.
Steven Emmert, a Virginia Beach appellate lawyer who often comments on court rulings, sees the order this way:
“In my opinion, the likeliest explanation for this order is that the decision in Scott will come down any day now, and that may moot the issues in the new case. That can happen in one of two ways: (1) The court is going to affirm and the referendum is cancelled. That means that certification is irrelevant. (2) The court is going to reverse and hold that the referendum was proper, and it’ll issue a companion order in the new case saying something like, ‘In light of the Court’s ruling this day in Scott v. McDougle, the judgment of the Tazewell Circuit Court in this case is reversed, and final judgment is entered in favor of the petitioner.’
“Other possibilities include that the motion for stay is somehow defective in form, but I think that’s a long shot. I seriously doubt that the Solicitor General goofed on something this basic.
“Incidentally, I sincerely believe that we’ll get a ruling in Scott any day now. In fact, I believe that the opinion of the court and any dissenting opinion were already written before the clerk intoned, ‘All Rise’ yesterday — subject to post-argument tinkering.”
If that’s the case, then it’s very curious that two conservative justices (Wesley Russell Jr. and Stephen McCullough) dominated the questioning during oral arguments. Did that signify that they were trying to draw out answers to help in writing a majority opinion in favor of the “no” side? Or that they were trying to draw out answers to persuade their colleagues to come over to their views? If you like that sort of thing, order yourself a cup of tea and see what the tea leaves say.
Before we go further, there’s one point that cannot be emphasized enough:
The legal case isn’t about the election results, it’s about the constitutionality of the election itself
No one (except maybe President Donald Trump, who performatively claims anything that doesn’t go his way is “rigged”) disputes that the “yes” side won the election. The legal question is whether the election was lawfully held.
The state constitution requires that the General Assembly pass a proposed constitutional amendment twice, with a state election in between, before it goes to voters. The legislature met last October to do this. Democrats say that vote, which came before the November Election Day, checks off the right box. Republicans say it doesn’t, because early voting was underway and about 1 million votes had already been cast. Legally the question here is what constitutes an election — is it just Election Day, or the whole voting season? Democrats argue the former, Republicans the latter.
The session last October was the continuation of a special session called earlier about the budget. Republicans contend it was not legally capable of passing a constitutional amendment; Democrats say it was.
There’s also a challenge to whether the legislature properly notified court clerks around the state, a requirement that either does or doesn’t apply but is certainly somewhat archaic. My sense is if the court rules against the referendum, it will be one of the first two reasons, not the notification. If the court’s going to throw out an election, it better have a good reason, maybe even two good reasons — the notification part (which may no longer apply anyway, under the Democratic argument) seems pretty small.
The court cares about process
I have no inside information on how the court will rule, but I will point out that the Republican legal challenges are about process, and the court has shown in the past it cares a lot about process. Recall that in 2016, then-Gov. Terry McAuliffe issued a blanket restoration of civil rights to convicted felons. The state constitution clearly gives the governor the power to restore civil rights, but Republican legislative leaders challenged his ability to do it with one stroke of the pen — and sued. The Supreme Court came down on the side of the legislature, forcing McAuliffe to reissue the restorations one at a time. If the court rules that the election was unconstitutional, it will be a process-based ruling. Part of the questioning earlier this week dealt with why some words in the law are passive verbs; it was like listening to a grammar lesson.
Would a ruling need to be unanimous?
Legally, no. A 4-3 ruling would carry the day whichever way it went. However, if the court were to take the step of throwing out the election, that would be a political bombshell. In that case, would justices want a unanimous ruling — and could they get one? Back in the 1950s, U.S. Supreme Court Chief Justice Earl Warren worked behind the scenes to get a unanimous ruling for the landmark Brown v. Board of Education ruling that struck down school segregation.
Would Cline challenge Griffith?
The other speculation lighting up social media Tuesday was a political one, based on the prospect of the court upholding the election, which puts a new congressional map in place for this November’s midterms. Conservative radio talk show host John Fredericks — a figure of consequence in the Republican world — on Tuesday interviewed Rep. Diana Harshbarger, R-Tenn., about the Foreign Intelligence Surveillance Act. The discussion veered off to Virginia’s redistricting. “I’ve got people running scared,” Harshbarger said. “You’ve got two good members who may have to face off and run against each other. I just hate that.”
On further questioning, she said she was referring to Reps. Ben Cline of Botetourt County and Morgan Griffith of Salem. Cline now represents the 6th, Griffith the 9th. The redistricting plan that now takes effect — unless the Virginia Supreme Court rules that the election was constitutionally flawed — puts Cline in the 9th and Griffith in the 6th, which has been drawn to tilt Democratic. Griffith has said he intends to keep running in the 9th; that’s where his constituents are. Harshbarger suggested that Cline and Griffith would wind up in a primary for the Republican nomination in the 9th. Harshbarger’s comments — and Fredericks’ subsequent social media posts about this — surface a rumor that has animated some Republicans in recent weeks.
I asked Cline about this. He replied by text: “I’ve been telling everyone that I am optimistic we will win the lawsuit and I will be running in my current House district.”
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