Unfairness Cubed

The congressional balance of power could well hinge on whether Virginia Democrats’ partisan redistricting scheme survives court scrutiny. In an early signal of the legal ferment that is likely to follow after the gerrymander passed Tuesday in a referendum approved by just 51.4 percent of voters, a state district judge Wednesday evening held that the vote could not be certified. The new map, in a bid to tip control of the House, is designed to tilt the Old Dominion’s delegation, currently six Democrats and five Republicans, to take four seats from the GOP. The results of Tuesday’s referendum, which endorsed an amendment to Virginia’s constitution, certainly belie the measure’s avowed claim to “restore fairness in the upcoming elections.” It’s hard to see what’s fair, after all, about a slender majority of the state’s voters, corresponding to the 51 percent of Virginians who are registered as Democrats, rigging the maps so 91 percent of its seats in the House of Representatives go to their party.The partisan power grab raises concerns about a de facto disenfranchisement not only of the commonwealth’s GOP voters, who comprise some 30 percent of the electorate, but also the 18 percent of Virginians who are registered as independents. The commonwealth’s political diversity is one reason voters in 2020 amended the constitution to form a bipartisan panel to draw neutral voting maps. The geographic distribution of Tuesday’s referendum results also underscores questions about “fairness.” The measure was opposed by voters in the vast majority of counties across the state, election results disclose. Yet lopsided support among Democrats in cities like Richmond, where the measure passed by a margin of 65 points, and the Beltway stronghold of Arlington County, which backed it by 60 points, helped push the amendment over the top. “Serious legal questions remain about both the wording of this referendum and the process used to put it before voters,” asserted the GOP leader in Virginia’s House of Delegates, Terry Kilgore. A trial court in January held the referendum illegal, in part because lawmakers failed to abide by the rules for setting up a special vote. The same court acted on Wednesday to block the vote from being certified. The commonwealth’s high court had earlier refused to halt the referendum, despite the legal doubts, but that dispute is still pending. Virginia Democrats are due on Thursday to file their legal arguments in the case with the state’s high court. Oral arguments will then be slated. Other lawsuits against the Democrats’ gerrymander are pending in lower state courts. Mr. Kilgore, grasping the issues at stake, asks: “If we can throw this constitutional amendment out, what other constitutional amendments can we throw out over the next few years?”Governor Abigail Spanberger underscores the partisan motive behind the new map by touting the rewrite of the constitution as “a temporary measure to push back against a president who claims he is ‘entitled’ to more Republican seats in Congress.” To be sure, the GOP bears some responsibility for launching this year’s wave of gerrymanders to gain advantage in the midterms. Virginia Democrats deem that effort as justification for their new map. Mightn’t that concession by the Democrats, though, hurt their cause in court? Virginia Republicans, in legal filings, paint the amendment’s vow of “fairness” as “misleading.” The vote results bolster the GOP’s point. Per the GOP, the “ballot question contains a false opinion” by stating that the amendment would “restore fairness.” In reality, the GOP avers, it “destroys fairness, is the product of unfairness, and is intended to increase unfairness.”This editorial was updated to reflect legal developments.

Unfairness Cubed

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