When the two sides involved in Virginia’s redistricting battle file their legal briefs with the Virginia Supreme Court, perhaps both of them should submit a copy of William Shakespeare’s “Macbeth,” with particular attention called to Act I, Scene VII.
That’s where Macbeth, contemplating whether to redistrict the king out of his seat on the throne of Scotland with a dagger, muses: “If it were done when ’tis done, then ’twere well it were done quickly.”
On Friday, Virginia’s highest court said the redistricting case is of “imperative public importance” and laid out a schedule for filing briefs in the Republican challenge to the Democratic plan to redraw the state’s congressional lines to create a partisan advantage in this fall’s congressional midterms.
The first catch: The first deadline for briefs isn’t until March 23 — more than two weeks after early voting begins March 6 for the April 21 referendum on the proposed constitutional amendment that would allow the redistricting.
The second catch: The final deadline, for replies to those briefs, isn’t until April 23 — after the referendum.
This puts the Virginia Supreme Court in a position of potentially throwing out “the will of the people.” Has a court ever invalidated a vote for any reason other than irregularities? This does not seem as if the court is treating this case as being of the “imperative public importance” that the court document says it is.
However you stand on redistricting, this just seems a very bad look.
Before people vote — before both sides spend millions of dollars to sway those voters — shouldn’t people know whether this referendum is even lawful? That uncertainty could potentially depress turnout on both sides.
We’ve long been told that the wheels of justice grind slowly, but must they grind this slowly?
Other courts have moved quickly when they’ve had to. Let’s compare.
A Tazewell County judge ruled Jan. 27 that the proposed redistricting amendment was invalid because it violated multiple provisions of state law. That ruling was appealed to the Virginia Court of Appeals. On Feb. 4, the Court of Appeals asked the Virginia Supreme Court to take the case without going through the intermediate court because “these appeals present questions of such imperative public importance as to justify the deviation from normal appellate practice and to require prompt decision in the Supreme Court.”
Nine days later, the Virginia Supreme Court responded by saying the referendum could go forward while it deliberates the case — and setting deadlines that mean a ruling won’t come until after the vote.
From Feb. 4, the day the Court of Appeals asked the Supreme Court to take the case, until April 23, the date of the last court filing, is 78 days. No date for any oral arguments has been set. Even if the court forgoes those and just relies on briefs, it would need time to digest those replies and issue a ruling, but we know the process will take at least 78 days.
How does that compare to other important cases?
The Virginia Supreme Court acted more quickly in 2015 when alumnae of Sweet Briar College challenged the board’s decision to close the Amherst County school. That year, the appeal of a lower court ruling was filed April 15; the Virginia Supreme Court heard oral arguments on June 4 and issued a ruling that represented a victory for the alumnae on June 9. That was 55 days from filing to ruling.
If you applied the Sweet Briar timeline here, a ruling would come on March 31, which would still be after early voting has begun but before the formal Election Day.
(Legal scholars may note that the Sweet Briar case was different than redistricting because it was an appeal of a procedural ruling, not a full-scale case on the merits, but the point is that the Virginia Supreme Court in 2015 recognized that time was of the essence because students needed to know whether to seek enrollment elsewhere or not.)
In 2016, Republicans in the General Assembly filed suit against Gov. Terry McAuliffe to challenge his mass restoration of civil rights to felons. They argued that he had to act on each one individually. For legal reasons, the suit went directly to the Virginia Supreme Court. It was filed on May 23; the court handed down a ruling (against McAuliffe) on July 22. That was 60 days from filing to ruling.
If you applied the Howell vs. McAuliffe timeline here, a ruling would come on April 5.
The U.S. Supreme Court has been known to move fast when it needs to.
The case over whether President Richard Nixon had to turn over the Watergate tapes took 54 days from the appeal to the ruling.
During the 2000 dispute over the presidential election results in Florida, the U.S. Supreme Court took the case Dec. 9, heard oral arguments Dec. 11 and issued a ruling in Bush v. Gore the next day, Dec. 12. That’s three days from appeal to ruling.
The record suggests that the Virginia Supreme Court could have expedited this case but chose not to.
If the referendum is defeated, the court could conceivably say there’s nothing left to rule on and dodge the question entirely.
If the referendum is approved, that court could be in the awkward position of saying it should never have been held. There are other scenarios possible: The court could say this is all very complicated, let the new map go forward for 2026, but then ultimately rule them unlawful for 2028.
Other lawsuits likely will come if the referendum passes: Republicans can’t challenge the map itself until the new districts are actually approved.
In the meantime, what we have is a referendum that might not be honored.
Voters ought to be able to know if their vote will really count. Candidates ought to be able to know which districts they need to run in. Right now, we don’t know either of those things: We just know there will be a vote on April 21. We’ll find out later if it counts. Or, as Shakespeare wrote, it could all be “sound and fury signifying nothing.”
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