Virginia Democrats’ appeal to the Supreme Court to save their state’s new congressional map is a sad case in point.
The Democratic Party is reeling. The Supreme Court’s decision in Louisiana v. Callais, which functionally disabled the Voting Rights Act, has spurred a new wave of Jim Crow gerrymandering all throughout the South. Alabama, Florida, Louisiana, South Carolina, and Tennessse are all moving quickly to redraw their maps ahead of the midterm elections and make sure that Black people who live in those states have no opportunity to elect a representative of their choosing.
Democrats had hoped to offset the loss of Black representation by heavily gerrymandering states where they control the legislature, but a ruling from the Virginia State Supreme Court struck down one of those aggressive Democratic gerrymanders. That ruling was unhinged: By a 4–3 majority, the state Supreme Court ruled that the Virginia legislature didn’t follow proper procedures for amending the state Constitution to create a new map. Not only was the court’s reasoning spurious, but it also blithely overlooked the fact that this new map was recently approved by a voter referendum.
As unconscionable as the ruling was, it seems to have finally delivered a long overdue memo to Democratic politicians: Republican-controlled courts will allow Republicans to gerrymander their way to victory but won’t allow Democrats to do the same thing.
It’s a memo Democrats should have received at least 26 years ago, after Bush v. Gore, when the Supreme Court installed George W. Bush as president without even bothering to count all of the ballots in the state of Florida. Republican-controlled courts are against the idea of Democrats and especially Black people holding political power, and they will do everything in their considerable power to prevent that from happening. Republican judges are not concerned with laws or precedents or facts or fairness. They are concerned with winning. There is no intellectual consistency to Republican court rulings beyond one maxim: Republicans Always Win.
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Watching the Democrats attempt to internalize this reality over the past week has been like watching Wile E. Coyote suddenly realize he’s run off a cliff. There’s a lot of flapping and thrashing but nothing that amounts to a real plan.
Virginia Democrats have provided a particularly good illustration of this arm-flapping. They’ve put forward a couple of ideas and acted on one: On Monday, they filed a lawsuit asking the US Supreme Court to overrule the decision of the state Supreme Court. The case amounts to a request for the Supreme Court to rule that the state legislature has the final say over how to amend the Virginia Constitution—and that the state Supreme Court overstepped its bounds by overruling the legislature.
The problem, aside from the now-obvious fact that the Republican justices on the court want Republicans in Virginia to win, is that the Supreme Court already kind of answered this question in 2023, in a case called Moore v. Harper. In that case, the Republicans were the ones arguing for more power by floating what lawyers call the “independent state legislature” theory, which is the idea that state legislatures, not courts, have the final say on election rules. The Supreme Court rejected that argument, with Chief Justice John Roberts, alleged attempted rapist Brett Kavanaugh, and Amy Coney Barrett joining the liberal block, and we should be very happy that they did. The independent state legislature theory is a way for red-state legislatures to block constitutional protections, not enforce them.
Virginia won’t win this lawsuit in front of this Supreme Court—and if it did, it would be bad, because literally every red state in the country could then make up its own election rules without any oversight from the judicial branch. That is how you go from gerrymandered maps to simply throwing out Democratic votes cast in a presidential election. Using independent state legislature theory is like using a nuke to kill a virus: It probably won’t work, and now you have the original virus, nuclear fallout, and whatever radiation-resistant strain of the virus you just created.
The other idea from Virginia Democrats is more promising and less dangerous. They’ve proposed lowering the mandatory retirement age for the state Supreme Court from 75 to 54, which is the age of the youngest judge currently on the court. This would allow Virginia Democrats to get rid of nearly the whole court and replace it with judges more responsive to the will of the people.
That’s not a terrible idea, but it’s hard to see how Democrats can change the age, force the old judges off the bench, appoint new judges, and get those judges to approve the gerrymander before the midterms. And they’d have to do all that at speed, over the howling objections of Republicans, while soothing more “moderate” Democrats who lack the fortitude to do what is necessary.
The overall problem, in Virginia and elsewhere, is that the Democratic response to protect voting rights and especially Black voting rights needed to happen before the courts took them away. The time to protect voting rights, pass the John Lewis Voting Rights Act, and expand the Supreme Court was 2021, when Democrats controlled both houses of Congress and the White House. Instead, the Democrats did nothing. Democrats did not use the power they had when they had it, and now they don’t have the power to stop what Republicans literally promised to do in Project 2025.
Since the Democrats didn’t institute real judicial reforms when they could have, the legal options are essentially nonexistent. Nobody wants to hear this, but there are no commonsense institutional reforms that can help the Democrats now, before November. Lawsuits are of no more use here. Tweaking retirement ages doesn’t help the Democrats in the immediate term.
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If you’re waiting for me to say “instead, the Democrats should…,” then you are missing the point. Democrats had an opportunity to stop this, and failed. This is what failure looks like. You can’t decide to equip yourself with a parachute when you’ve already been pushed out of the plane. All that’s left now is the screaming.
Democrats cannot save themselves. The only people who can save them are the voters, who must overcome incredible odds to reject the Republican agenda. All of these gerrymandered maps can be thwarted, but they require overwhelming turnout. Record-breaking turnout. Turnout that exceeds what would be expected of a presidential election but for a midterm election. All of these maps are based on turnout models, and if voters exceed those models they break the maps. That’s literally the only way.
The Democrats will be very lucky to get as much political power by 2029 as they had in 2021. They’ll be lucky to control both Congress and the presidency again in the lifetimes of most of the people reading this. If they ever do get that kind of power again, all I can suggest is that they use it to expand the court and reform the judiciary so that Republican judges can never again take away Black political power and reestablish Jim Crow.
Maybe next time, if there is a next time, Democrats will act.
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