The Virginia Supreme Court’s ruling to invalidate the April 21 special election on the grounds that the General Assembly didn’t follow the rules in placing the question on the ballot is unprecedented: While the court has held since 1912 that it has the power to rule that an election question was unlawfully placed on the ballot, it’s never actually said one was.
In 1958, the Virginia Supreme Court ruled that Arlington voters had two years earlier approved a referendum question that was unconstitutional — but that ruling was on the substance of what Arlington voters passed (an ordinance to limit who could vote on bond issues), not the legality of the election itself. Here, the question was reversed — the court wasn’t looking at whether the new congressional map was lawful, but whether the election that enacted it was.
The ruling scrambled a lot of political dynamics just 41 days before early voting is set to begin in congressional primaries, although at least now candidates have clarity about which district they’re running in (or if the district they wanted to run in still exists).
However, this isn’t the first time the state Supreme Court has upended a congressional election in Virginia. The most famous time was in 1932 when, three weeks before the election, the justices ruled that the map Virginia was using violated the state constitution. Since there wasn’t time to draw a new map in time, the solution was an oddity in state political history: That year, and that year only, all the state’s U.S. House members were elected statewide, rather than from individual districts.
This isn’t something that could happen today: There’s now a federal law that requires one representative per district, so no at-large elections. Still, the election of 1932 stands as a curiosity in Virginia political history — and one that offers much insight into the politics of the time.
To understand what happened that year, we must go back further in time, back 98 years to 1928, when the South was still the Solid South — solid for Democrats, that is, preferably conservative ones. That year, Republican Herbert Hoover swept to the presidency over Democrat Al Smith. Smith was a problematic candidate for many Southern Democrats — he was Catholic, and they were quite prejudiced; he was “wet,” and many of them were politically “dry” on Prohibition, regardless of what they might have kept in their cabinets. Smith was so problematic that Virginia, along with some other Southern states, did something previously unthinkable: It voted Republican that year.
The vote for Hoover came with a price in Virginia: His victory swept in three Republican congressmen where previously there had been none. Two of those Republicans — Jacob Garber of Harrisonburg in the 7th and Joseph Shaffer of Wytheville in the 9th — lasted just a single term before Democrats reasserted themselves. The third Republican, though, proved to be more tenacious. Menalcus Lankford — his name came from the work of the Roman poet Virgil, but he usually went simply by “Mack” — won reelection in the 2nd District in Hampton Roads in 1930 by almost the same margin he’d won by two years before. This unexpected victory came despite 1930 being a bad year for Republicans, what with the Great Depression and the usual midterm reaction to whoever was in the White House. That win meant Lankford was now the only Republican congressman in the South. As such, his presence was a great irritant to Virginia Democrats.
Before Virginia Democrats could focus on ousting Lankford, though, they had another problem: The 1930 census showed slow population growth in Virginia, while other states had grown faster. The state had to give up a congressional seat, which further complicated the required redistricting. This was long before the days of “one person, one vote,” so there were no federal requirements that districts be the same size, population-wise. However, Virginia’s constitution did include a pesky state requirement that districts be roughly the same size. Jeff Schapiro, writing for the Richmond Times-Dispatch some years ago about this election, wrote that legislators simply ignored that directive. They were more concerned about achieving other political aims, drawing districts that suited favored politicians. The result was districts that ranged from 184,000 people to 337,000 people, when the ideal that year was 269,000.
The governor, John Garland Pollard, found the map so distasteful that he refused to sign the legislation and simply allowed it to become law without his signature. Meanwhile, two Republicans decided to go to court to challenge the constitutionality of the new map. One of those was William Moseley Brown, a former professor at Washington and Lee University, who had been the sacrificial Republican candidate for governor in 1929 and by 1932 was president of the short-lived Atlantic University in Virginia Beach (a project of the psychic healer Edward Cayce). The other was Charles Berkeley of Newport News, who had been the Republican candidate for attorney general in 1929.
To make sure their case didn’t languish in the court system, Brown and Berkeley took an unconventional approach: They organized a slate of at-large candidates who filed for the House. Since there were no at-large seats available, the electoral board rejected their paperwork. That gave Brown and Berkeley the opportunity to sue and fast-track their case to the Virginia Supreme Court.
What happened next falls into the category of “be careful what you wish for.” Conventional wisdom at the time predicted that the Republican suit was bound to fail before a court of justices elevated to the bench by Democrats. It did not. The justices ruled that the Republicans were right — the congressional districts, as drawn, violated the constitutional requirement of being approximately the same size: “There can be no uncertainty in the conclusion to be reached in the case under consideration,” the court wrote. “The inequality is obvious, indisputable and excessive. No argument is needed.”
However, by then it was early October, too late for the legislature to draw new lines before the election.
“Under the circumstances, we are forced to the conclusion … that it will be necessary for the electors in the State at large to select the nine members to represent the State in the national legislature.”
The justices did not seem to like this solution, but saw it was the only one available: “It is our duty, as it is the duty of all others, to obey the mandate of the fundamental law,” they wrote. Given the facts before them, “we are forced to the conclusion reached in this case.”
Brown and Berkeley had only filed as at-large candidates as a legal ruse to create a case. They did not actually want at-large elections, but that’s what they got. Suddenly, every congressional candidate in the state — all 24 of them — was running for nine at-large seats.
The Republican legal ploy, and the subsequent Virginia Supreme Court decision, doomed the state’s only Republican congressman.
Lankford knew there was no way he could win a statewide election, not in those days when conservative Democrats ruled the state and Republicans were an exotic species. As Schapiro told the story: “Lankford put on a brave face, saying that if he received the majority of the vote in the 2nd District, he would ask Congress to seat him. But he seemed to grasp that his was an uphill battle: ‘I do not have the time or the money to engage in a statewide canvass.’”
On Election Day, he didn’t even come close, not even in the 2nd District and certainly not statewide.
The nine winning Democrats all received about the same number of votes — from 206,631 for first place to 201,474 for the ninth-place winner. Lankford got more votes than any of his fellow Republicans, but his tally was just 92,586 votes. Based on the vote totals, Lankford would have lost a straight-up race for the 2nd District seat anyway, but the Republican lawsuit intended to force evenly drawn districts definitely put him on the losing end.
Lankford never ran for office again. Hoover named him a federal bankruptcy referee, a position he held until an early death five years later, at age 54.
The Democrat from Hampton Roads who won what would have been the 2nd District, but temporarily became an at-large seat, was Colgate Darden, who went on to become governor in the 1940s and later president of the University of Virginia.
In a sign of how different things were back then, the leading vote-getter statewide that year was the Democratic congressman from Roanoke: Clifton Woodrum.
Meanwhile, two decades would go by before another Republican was elected to Congress from Virginia.
Want more political news and analysis? Get it every Friday in West of the Capital, our weekly political newsletter.
