There are at least two ways to view the issues that lay behind the upcoming special election on a constitutional amendment that would allow an unusual mid-decade redrawing of congressional lines.
The obvious way is to see this through the lens of partisan politics — that this is either an old-fashioned power grab to knock out four of the state’s five Republican U.S. House members (that’s the Republican view on the “no” side), or that this is simply a way to even the score after Republicans in other states engaged in their own power grab to redraw lines to push out Democrats (that’s the Democratic view on the “yes” side).
For those of you who feel one way or another we have these lovely signs which are now popping up across the countryside, urging voters to either “stop the steal” or “fight back.”
For those of you of a more philosophical bent, we have the Founding Fathers.
While our founders didn’t have to worry about the Federalists and Anti-Federalists going state by state to gerrymander lines (the concept of gerrymandering surely existed then, but not the word), they did wrestle with the philosophical issue at play here.
Namely, how much power should the majority have and how much should the rights of political minorities be respected?
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Take off your brass knuckles and put on your powdered wigs. We’re going to see if history can teach us anything here.
When the court-appointed mapmakers drew the current lines back in 2021, they sought to achieve a result close to the state’s politics. And they did. The current map has produced six Democrats and five Republicans. That’s a split of 54.5% Democrat to 45.4% Republican. That’s pretty darned close to the results of most state elections in recent years. In last November’s election, Abigail Spanberger won the governor’s race with 57.58%, Ghazala Hashmi won the lieutenant governor’s race with 55.64%, Jay Jones won the attorney general’s race with 53.14%.
If the “yes” side prevails on April 21, the map that would go into effect aims to produce 10 Democrats and one Republican. That would be a split of 90.9% Democratic, 9.09% Republican.
That brings us to a philosophical question that Republicans have been raising: Is it right for a state that’s about 55% or so Democratic to have almost 91% of the congressional seats be held by Democrats?
Democrats counter that Republicans — specifically one Republican, Donald Trump — started this when he urged Texas to redraw its lines, and that they’re just trying to balance things out. They also sometimes point out — correctly — that there are lots of Republican states where a modest Republican majority at the ballot box has produced a lopsided Republican majority in the congressional delegation. We need look no further than North Carolina. Trump carried the Tar Heel State with just 50.7% of the vote in 2024, but Republicans hold 71.4% of the congressional seats — a count of 10-4.
Some of that is gerrymandering. Some of it is simply residential patterns — Democrats clustered in urban areas, Republicans dominant in rural areas, which often makes it hard to draw districts that are both compact and competitive at the same time. Ultimately, though, the reason is our electoral system, which the British call “first past the post.” That’s a colorful way of saying we have specific, geographic-based districts with a winner-take-all system in each one. Whoever wins the district, regardless of the percentage, gets the entire seat. We can’t conceive of it any other way, but some countries with parliamentary systems have proportional voting, where a party that wins, say, 55% of the vote gets 55% of the seats. That system guarantees a voice to minority parties; ours minimizes those voices even if seats aren’t gerrymandered. Look at Massachusetts: That’s a Democratic state, to be sure, but there are some Republicans there. In the last presidential election, Trump took 36% of the vote in Massachusetts, but Republicans still wound up with zero congressional seats.
Now, you can argue that it’s impossible to draw a Republican seat in Massachusetts simply because of residential patterns, just as you can’t draw a Democratic one in North Dakota, because even though 30.5% of the voters there cast Democratic ballots, the Democrats are too scattered to dominate a single district.
Let’s not get too distracted by those states. The point here is that, in Virginia, we can draw districts that produce results generally reflective of the overall state — and have. The question now is whether we should stop doing so because of some political exigency. That’s what’s being debated now, so I won’t repeat those arguments. Instead, I’ll pose this: In a system where “majority rules,” what, if anything, do we owe the political minority? To what extent should the political minority be guaranteed a voice?
Those are questions our founders wrestled with. The context might have been different — they weren’t talking about gerrymandering, but they were trying to work through the philosophy of what “majority rules” means and what happens to the minority under such a system.
In Federalist Paper No. 10, James Madison addressed the concern that majorities would run roughshod over minorities: “Complaints are everywhere heard from our most considerate and virtuous citizens … that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence of known facts will not permit us to deny that they are in some degree true.”
That was an 18th century way of saying “yeah, sometimes it happens.”
Madison addressed this again in Federalist Paper No. 51: “If a majority be united by a common interest, the rights of the minority will be insecure.” However, he went on to say he didn’t think that would happen: “The society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.”
Madison was right about many things but he was sure wrong about that.
Nonetheless, our founders were very concerned about too much power in too few hands; their solution was to divide up the powers of government as much as possible — the checks and balances of executive, legislative and judicial power. Ultimately, though, our founders didn’t have a solution for the problem that now confronts us, likely because our founders had trouble envisioning political parties the way they have evolved in the centuries since. Indeed, in Federalist Paper No. 70, Alexander Hamilton of future Broadway musical fame argued that the best defense against an impulsive legislature was a strong executive. Here, what we have is a strong — and impulsive — executive, who has persuaded some state legislatures to carry out his will.
I found the Federalist Papers to be dreadful reading in school, but instructive — if somewhat dense — documents now. However, nowhere can I find our founders offering any sage advice, or even just general advice, on how far majorities should go and how far they shouldn’t. They seem to concede that, yes, an “overbearing majority” might take hold in one branch of government, but they trusted other branches of government to counter that. I cannot find good advice on how to prevent an “overbearing majority” within a single branch of government from trying to imperil the political status of the minority — be it Republicans in the Texas state legislature who have moved to eliminate Democratic seats, or Democrats in the Virginia state legislature who have now given the people themselves the opportunity to eliminate some Republican seats.
Thomas Jefferson, in his first inaugural address, came close. His election (which came after the tumultuous constitutional crisis best explained in the musical’s 19th song, “The Election of 1800”) marked the first time the young republic had seen a change of party. The Federalists were defeated, the anti-Federalists (by then calling themselves Democratic-Republicans, or simply Republicans, but not the Republicans of today) were in. Some warned of civil war. Jefferson took a conciliatory tone in his inaugural address: “All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable.”
So what is reasonable? Is it reasonable for a legislative majority to redraw congressional lines in mid-decade to find as many seats as possible for their party? Is it reasonable for a different legislative majority in a different state to respond in kind? Does the minimizing of minority voices in one state justify the minimizing of the voices of a different political minority in another state? Obviously different people have different views on that. For all our founders had to say about the dangers of “the superior force of an interested and overbearing majority,” there is no exact parallel between then and now that we can look to for guidance. The Federalists were not drawing the anti-Federalists out of seats, or vice versa. That came later, once mere “factions” evolved into formal parties.
There is, however, this: In Federalist Paper No. 78, Hamilton wrote about what would happen if state legislatures passed “unjust and partial laws.” If that happened, he wrote, the courts would step in. “The firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws,” he wrote.
Here is your periodic reminder that the election results of April 21 may not be final. The Virginia Supreme Court will not be ruling until afterwards whether the referendum was properly put before voters. Democrats will say it is. Republicans may find themselves quoting Federalist Paper No. 78.
Want more politics and analysis?
On the latest Cardinal podcast, I talk with host Dutchie Jessee about how April will be a consequential month in Virginia politics.
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