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Virginia Democrats Could Gain Seats After High Court Ruling (1)

June 17, 2019, 2:40 PMUpdated: June 17, 2019, 7:33 PM

The U.S. Supreme Court handed Virginia Republicans what could be a costly defeat ahead of the state’s off-year elections in November.

In a 5-4 decision along unusual lines, the justices refused to disturb a lower court ruling finding that the state’s Republicans had unconstitutionally harmed minority voters while drawing voting districts for the House of Delegates.

The justices ruled that the Virginia House of Delegates, led by Republicans, doesn’t have the authority to pursue an appeal after the state declined to do so. They, therefore, threw out the appeal.

Primary elections under a new court-drawn map took place June 11, suggesting that a ruling requiring a different map could have caused widespread chaos, William & Mary law professor Rebecca Green said.

“As a Virginia resident, I’m breathing a sigh of relief,” Green, who leads William & Mary’s Election Law Program, said.

The justices dismissed a separate challenge to the new map itself, meaning that the 2019 general elections will also be held under the court-drawn map.

That map is largely thought to be more favorable to Democrats ahead of the consequential election.

In particular, Virginia’s off-year elections mean the upcoming election will establish party control of the General Assembly during the next redistricting cycle, which will occur after the 2020 census.

Right now Republicans narrowly control both the House and Senate.

But while the Virginia case was a win for Democrats, there’s noting inherently political about the legal doctrine itself, said George Washington University law dean Alan B. Morrison.

The doctrine favors the political party in power at the time of the litigation—not Democrats or Republicans, SCOTUS veteran Morrison said.

The unusual 5-4 breakdown, which broke along non-ideological lines, underscored that the doctrine wasn’t political.

Justice Ruth Bader Ginsburg wrote for the majority, which included Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan, and Neil Gorsuch. Justice Samuel Alito penned the dissent for Chief Justice John Roberts and Justices Stephen Breyer and Brett Kavanaugh.

Institutional Ruling

The ruling is very significant given the impact on the upcoming election, Morrison said. But the holding itself may be limited in that it involves a pretty unique situation, he added.

Notably, the case concerns an institutional question of who can defend the legality of voting districts when the party that drew the map is no longer in power.

Here, both the Governor’s and Attorney General’s offices have changed power since the now-defunct map was enacted in 2011.

The now-Democratic executive decline to appeal a ruling finding the earlier districts were drawn with race playing too much of a factor. The Republican-led House of Delegates wanted to take the state’s place, but the Supreme Court refused.

“One House of its bicameral legislature cannot alone continue the litigation against the will of its partners in the legislative process,” Ginsburg wrote for the court.

In other words, “elections have consequences,” Morrison said.

Partisan Gerrymandering

The ruling comes as court watchers are eagerly awaiting rulings in a pair of partisan gerrymandering cases that could dramatically alter the landscape ahead of that redistricting cycle.

There may be some tea leaves in the minority opinion, Green said. But on the whole the Virginia decision says very little about how the court will ultimately rule in those partisan gerrymandering cases, Morrison said.

The issues are just completely different, he said.

At issue in the partisan gerrymandering disputes is whether courts have any role to play in policing partisan gerrymandering—that is, the consideration of party politics in drawing district lines.

The justices have struggled with that question for decades and have so far split along ideological lines. Republicans, in general, have argued that the political branches, not courts, should police such practices. Democrats have urged courts to step in.

A ruling in those cases is expected before the end of the month.

The case is Va. House of Delegates v. Bethune-Hill, U.S., No. 18-281, 6/17/19.

(Updates throughout with context, quotes)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at