As the courts prepare to redraw Virginia’s Congressional Districts likely resulting in a loss of one or more Republican incumbents, writers on the right are spending their time focusing on the underhanded tactics of Democrats.
I will take a brief moment and say that I agree there are some sketchy things about the timeline for appointment of a new Justice, and the adjournment of the Senate violates the Virginia Constitution.
Still, Republican leadership in the House and Senate had the ability to avoid this problem by simply filing, and possibly passing, redistricting legislation at any point since the entry of the October 7, 2014 court order.
There is no serious General Assembly action. Republicans have control of the Virginia House and Senate. They could be pushing through new Congressional Districts and new House (and Senate Districts). Yet, all I have ever heard from the Republican members of the General Assembly on this issue is that “we can’t pass anything because McAuliffe will veto it,” and “we are confident in and must win the appeal.” The federal courts will end up redistricting for us if we lose!!!! No serious redistricting has even been proposed. Not good enough.”
I laid out the interpretations of the court order before finally concluding:
Under which option does it make sense to not pass any redistricting plan from each house of the General Assembly by April 1, 2015?
The Republican Caucuses are asleep at the switch, and are potentially burying our Congressional Republicans through inaction.
The Republicans showed up on August 17 and determined a series of parameters to guide the redistricting process leading up to September 1. The Democrats showed up with three formal redistricting plans a few weeks before the deadline. The Republicans showed up like it was January 2015 and they had all the time in the world.
This is litigation so what happens now?
The Plaintiffs will likely file a motion for appointment of a Special Master to oversee the redrawing of Congressional Districts. Once appointed, this Special Master will be charged with reviewing competing redistricting plans including plans developed by the Master. Recommendations will be made to the three Judge panel, the parties will be able to file briefs, and then the three Judge panel will choose our new Congressional Districts.
Expect a full scale redrawing of the districts
I apparently disagree with a handful of informed commenters and allies on this post. Let us talk about how the oral argument (here in Virginia Judges deplore ruling without oral argument) goes after the Special Master submits his reports. Here is my take:
Counsel for Republican House Caucus: We did everything we could but the Senate violated the Virginia Constitution by illegally adjourning and refused to even consider our legislation thereby preventing passage of a redistricting plan, SOOOO you should approve a plan chosen by the Republican caucus that merely tweaks the 3rd Congressional District.
Court: Counsel, when was our Order issued?
Counsel: October 2014, but that is not the point, the Senate Demo….
Court: The Order requires the G.A. to exercise its jurisdiction to engage in redistricting by April 1, 2015 correct?
Counsel: Yes, but we are appealing and obtained an extension from this Court to September 1.
Court: And what legislation was passed between April 1 and September 1?
Counsel: Well no legislation could be passed due to the illegal action…
Court: So four months passed with no action?
Counsel: The G.A. was not called back into session until August.
Court: Was the G.A. prohibited from engaging in redistricting between April and August?
Counsel: Not exactly, but…
Court: What was the status of redistricting legislation prior to April 1, 2015?
Counsel: Well the G.A. was working on some ideas.
Court: Was legislation introduced and sent through Committee?
Counsel: No, because the appeal was pending and an extension wa…
Court: At any point did the House Republicans submit legislation?
Counsel: They didn’t have the oppor…
Court: I understand it is uncontested that multiple redistricting plans were submitted by Democrats.
Counsel: But the process had only barely star…
Court: Going back to the Order, it does not say the G.A. must simply exercise jurisdiction by April 1, does it?
Counsel: That is the point, there was a deadline that was extended.
Court: But it also states the G.A. must exercise “jurisdiction as expeditiously as possible,” correct?
Counsel: Yes, but we were working with a deadline.
Court: Forget about passing, or even reviewing it in a committee, I don’t see how not INTRODUCING redistricting legislation for ten months constitutes expeditious exercise of jurisdiction.
Counsel: But the Senate Democrats…
Court: If anything the G.A. has willfully abdicated its role in this process and has asked the Court to fix these problems…
I expect a full scale redrawing of the Districts and G.A. Republicans to have minimal credibility at any hearing. The only reason the Court should not engage in a full scale redrawing is that the current redistricting plan was fully passed and signed into law.
What can be done?
The House is still in session, and can introduce and pass a redistricting plan from the House alone. Do not walk into Court empty handed. You have buried yourselves, and one or more Congressional Republicans through inaction. No matter how badly tricked you were by the Democrats on August 17, the failure, up until now, rests with you. Quit whining about Democrats violating rules, and denied extensions from the Court, and DO SOMETHING! Even something like this.
I was pushed to choose between incompetence and nefariousness back in February and I thought it was incompetence. Perhaps some that thought it was nefariousness are ready to change their minds.
** Clarifications:
1. I was too harsh in suggesting a ten month long requirement under the October order. It was actually a cumulative 8 month requirement that included nearly the entirety of the 2015 G.A. session. I had forgotten to mention the exception of the two month period from March 30, 2015 until Jun 5, 2015 when the case had been vacated and remanded. On June 5 a nearly identical order with a deadline of September 1 was entered.
2. There have been two rulings, both of which were appealed to the Supreme Court. At no time has ANY party sought a stay in the Supreme Court of the three Judge panel’s ruling pending appeal.
