Just when it seemed we’d seen everything, we see something new.
Last week, the Virginia Supreme Court threw out the April 21 special election on redistricting, the first time ever the court had ruled an election was unconstitutional (it had once ruled the issue a locality had approved in a referendum to be unconstitutional, but didn’t question the legality of the election). Then on Sunday, The New York Times reported that, in a conversation with U.S. House Minority Leader Hakeem Jeffries, some Virginia Democrats had floated “an audacious and possibly far-fetched idea” to replace the Virginia Supreme Court justices and relitigate the case to get their preferred result.
This idea appears to have begun with a website called The Downballot — which argued “Democrats might prefer other solutions, but if they want to see the will of the voters respected in time for the November elections, there are virtually no other options — and none with as good a chance of success as this one.” It’s gained traction in the hothouse of social media. Now it’s made its way into a conversation with a prospective Speaker of the House and the reporting of one of the nation’s most important news organizations.
If the court ruling was a bombshell, then the notion that Democrats would fire the justices who ruled against them is another. We’re now measuring Virginia political news in megatons. We are deep into an era where, if either party suffers a political setback, they simply try to change the rules. My role is sometimes to make sense of nonsense, so here goes.
1. This is not a serious proposal.
Someone on that call with Jeffries may think it’s serious, but it’s not. That’s not me saying that, it’s the calendar. In court filings as part of the election litigation, the commissioner of the Virginia Department of Election identified May 12 as the deadline by which the state election bureaucracy needed to know what the map is so it could begin preparations for congressional primaries. Those primaries aren’t until Aug. 4, but early voting begins June 18 and the deadline for candidates to file is May 26. Because of the proposed amendment, all those dates are already later than usual. Set aside the politics of firing a court that delivered an unfavorable ruling, and just focus on all the procedural mechanisms that would have to be involved: To convene the General Assembly, pass a law lowering the justices’ retirement age to 54 (which could clear out the court), persuade the governor to sign such a bill, then get a bench of justices in place, and get a rehearing simply seems impossible — unless someone wants to undo the whole election process this year.
2. Democrats may be misdirecting their anger.
Democrats are mad at the court, but why aren’t they mad at their legislative leaders who miscalculated the legal risk they were taking by waiting until late October to pass the amendment the first time? Democrats complain that the court made a political decision, but many activists apparently haven’t read the decision. The ruling did not deal with whether the map was gerrymandered, or whether it was a good idea to redraw congressional lines mid-decade. The ruling turned entirely on the legal definition of the election — and whether the early voting last fall constituted part of the election process. The court didn’t even deal with two other Republican objections to the referendum; it focused entirely on the definition of an election.
Virginia’s constitution requires that the legislature pass an amendment twice, with a state election in between, before it is put before voters. Republicans argued that Democrats waited too late, that the election was already underway when the legislature met. Democrats contended that only Election Day itself counted as the intervening election.
There are arguments to be made on both sides — and obviously were — but the point is this was not some surprise argument that Republicans sprang on Democrats after the fact. Democrats always knew the intervening election question was a troublesome point, and they knew the makeup of the Supreme Court that would ultimately rule on it, and they misjudged the seriousness of that argument. If a doctor has a patient die because the doctor miscalculated the dosage, there’s a word for that. Why isn’t this political malpractice? Sen. Louise Lucas, D-Portsmouth, put herself forward as the most vocal champion of redistricting; why aren’t Democrats angry at her for not realizing how this whole redistricting project could come undone? If Democrats had convened the General Assembly in early September 2025 to pass the amendment the first time, right now they could be admiring the partisan contours of “the lobster district” instead of frantically trying to find some way to undo a court ruling that went against them. The court said Democrats didn’t follow the rules; why are Democrats mad at being called for not following those rules rather than mad at their leaders for botching the job?
3. There are two Virginia precedents for replacing the whole Supreme Court for partisan reasons.
The suggestion that Democrats should simply replace justices who didn’t rule their way may be something we’ve never seen before, but it’s not unprecedented. In 1883, when the short-lived Readjuster Party governed the state in the aftermath of Reconstruction, it replaced all the Supreme Court justices. The Readjusters were the reformist party of their day and they wanted to purge state government of the conservative establishment that had led Virginia into the Civil War. The Readjusters’ reign was short-lived; they provoked a backlash that installed conservative Democrats in their place. In 1895, when those Readjuster justices’ terms were up, the Democrats cleaned house and put their own men on the court. Since then, we’ve apparently had only two instances (with Archer Phlegar in 1901 and Jane Roush in 2015) where justices weren’t reelected for political reasons — both cases involved justices who had been appointed on an interim basis by governors; legislators had different ideas.
Arthur Kelsey, who authored the majority opinion in this case, is up for reelection in January. We’ll see then whether Democrats want to replace a justice because they don’t like his rulings. Some might see that as crass politics; others might point out that the Virginia constitution gives the legislature the power to elect (and reelect) justices for a reason. If we didn’t want politics involved in judicial selection, then the state constitution would give justices life terms, not 12-year terms subject to renewal at the legislature’s discretion.
4. Redistricting may not give Republicans as much of an advantage as Democrats think.
Democrats are right to be unhappy that Republicans are redrawing lines in other states to squeeze out Democratic seats and tilt the balance before the midterms. Gerrymandering of any sort seems bad for democracy. However, I must ask: How serious is this, in practical terms? It may not be as serious as some think. Before the Virginia Supreme Court’s ruling, The New York Times had estimated the national scorecard in these redistricting wars at somewhere between a gain of one Democratic seat or six Republican ones. If we take Virginia out, that might be a possible net gain of up to 10 Republican seats. In the context of the usual midterm swings we see, that might be a marginal figure. In the past five midterm elections, the average swing has been 31 seats.
Democrats are much more disadvantaged by the recent U.S. Supreme Court ruling on the Voting Rights Act that has resulted in other Southern states moving to eliminate Black-majority (and Democratic) seats. All this gives Republicans an advantage — but only up to a point. Data journalist G. Elliot Morris, who runs the site Strength in Numbers, recently reported that President Donald Trump’s approval rating is below 50% in 134 Republican-held congressional seats nationwide. Even with the redistricting underway, it’s still entirely possible we’ll see a wave election that will return Democrats to power in the House. At some point, Democrats might need to ask whether they’re better off spending time, money and energy on fighting redistricting campaigns as opposed to funding actual election campaigns.
5. In Virginia, the redistricting fight may really just be about one or two seats, not four.
The whole point of the Democrats’ 10-1 map was to knock out four of the state’s five Republican House members: Rob Wittman in the 1st, Jen Kiggans in the 2nd, John McGuire in the 5th and Ben Cline in the 6th. However, under the current map, Democrats think they’re in a position to win in the 1st and 2nd anyway. The 2nd has long been a swing district, no matter who has held it. Last year, Democrat Abigail Spanberger narrowly won the 1st District. The Democratic Congressional Campaign Committee long ago designated the 1st as a targeted district that the party thinks it can win.
The same committee also designated the 5th as a targeted district. That’s more of a stretch for Democrats — Republicans carried it last year by 7.6 percentage points. However, Morris’ Strength in Numbers data shows that Trump’s approval rating in the 5th has sunk to just 41.8%, with a disapproval rate of 58.2%. McGuire has tied himself as close to Trump as he can; that allegiance, and the approval ratings, provide a “target-rich opportunity” for Perriello, a skillful campaigner who has experience running (and losing) in Southside before. If there’s a wave election — and I have no idea if there will be — it’s not impossible to see that wave washing across the 5th District.
That means Democrats might be able to win three seats in Virginia without redistricting, which means all this commotion might be just over whether Democrats can win one more — the 6th. It is hard for me to see any Democrat dislodging Cline, given the depth of the Republican vote in that district (Winsome Earle-Sears, a weak Republican candidate, carried it by 17.4 percentage points). However, Democrats have something there they’ve never had before: a well-funded and well-known challenger who comes from outside the world of politics. I refer, of course, to Roanoke author Beth Macy, which brings us to this next point.
6. The Democratic establishment seems to disregard Macy.
Party leaders drew a map that intentionally disadvantaged her, by putting her into the same district as Perriello. Macy recently told The New York Times she almost dropped out because she saw little chance of defeating Perriello in a primary. If Jeffries wants to take extreme measures to try to get around the Virginia Supreme Court ruling and get that 10-1 map, he’s essentially dooming Macy’s campaign. That may not matter to him; he may care more about numbers than people. Still, for a party that likes to talk up inclusiveness, its redistricting plans curiously excludes a female candidate who has raised more money than any other Democratic woman running for Congress in Virginia other than Elaine Luria in the 2nd, who previously served in the House. It’s also curious that Emily’s List, a political action committee specifically aimed at electing Democratic women, hasn’t endorsed Macy. It’s backed Luria in the 2nd and Shannon Taylor in the 1st — even though Macy has raised a comparable amount of money.
This may have nothing to do with Macy; it may be simply that Democrats nationally don’t see much chance of winning the 6th as currently configured (I suspect they’re right) and don’t want to waste their money. However, right now they have a candidate who has more money than the Republican incumbent. You’d think the Democratic establishment might take more interest in Macy. This goes back to a question I raised earlier: Democrats spent more than $60 million on the “yes” campaign that was intended to net them four seats. Could they have achieved the same result the old-fashioned way if they’d simply given $15 million apiece to the party’s nominees against the four Republicans they wanted to oust? In the case of the 6th District, that would be more than 15 times what Cline had to spend to win reelection two years ago. Democratic donors may want to ask if their money is being spent well.
7. This is an opportunity for Macy.
It’s hard for me to take this “replace the court” scheme seriously for the reasons I outlined at the beginning. Still, The New York Times story set the Virginia political world afire Sunday. This presents Macy with an opportunity. I thought she should have come out against the proposed amendment — it was bad for her politically but she could have also argued it was bad for the future constituents she hoped to have in the Shenandoah Valley. She didn’t, but now she’s got another opportunity — she could denounce this court-packing plan, however flimsy the notion might be. There would be some risk: Jeffries could turn off the financial spigot but, as I pointed out, the national Democratic establishment hasn’t done her any favors so far — and she’s done just fine with fundraising. Coming out against court-packing, and embracing the current 6th, could mark her as a different kind of Democrat, which is the kind of profile she’ll need if she’s going to have any hope of winning that district anyway. Voters seem to be in an anti-establishment mood: Macy could test the limits of how far that will go, even in her own party.
8. This is an opportunity for Spanberger, too.
The governor took a hit for backing redistricting; her disapproval rate went up (although there are now indications that’s coming down). More generally, redistricting has been a distraction that the new governor doesn’t need politically. She has three choices here:
A: She could ignore this and let it die a natural death in the new cycle (unless some Democrats keep pushing this). That may be the wisest course; never invite trouble.
B: She could endorse it, which seems politically unwise.
C: Or she could come out against it. There’s risk in that — some Democratic activists would be furious. However, that would be more in keeping with the image she presented during the campaign. Part of the role of a governor is to be “the adult in the room.” We seem to be in an area where a lot of juvenile antics are playing out in politics. This gives Spanberger an opportunity to assert herself as a no-nonsense governor.
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