Democrats are salivating over the prospect of judicially-mandated House of Delegates elections three years in a row: 2015, 2016, and 2017. And while there is some precedent for this, all the day dreaming is probably more than a little premature.
THE BACKGROUND
There are currently two challenges to the decennial reapportionment conducted by the General Assembly at the beginning of this decade. One case involves Congressional district lines (and Virginia’s GOP Congressional delegation as parties. In this matter, the 4th Circuit found that black voters had been unlawfully packed into Democratic Rep. Bobby Scott’s 3rd Congressional District, and ordered new lines to be drawn by September 1 of this year. This case is on appeal to the Supreme Court. General Assembly Republican leaders have petitioned the 4th Circuit to postpone that deadline to give the appeal a chance, and have set forth some good arguments the 4th Circuit is likely to agree with.
The latest drama in this case came yesterday, when Governor McAuliffe wrote to GOP leaders to begin early work on a special session he called for to begin August 17. House Speaker Bill Howell quickly rejected the Governor’s entreaty, saying he was confident the court would grant the request to postpone the deadline until after the appeal, making an August special session unnecessary.
Another case, brought on the same grounds and making the same arguments, involves House of Delegates lines. This case has yet to be decided, but here General Assembly Republicans made a somewhat different set of arguments in response to the plaintiffs’ complaints about racial gerrymandering, saying simply that the districts were drawn to make it harder for certain Democrats to win re-election–revealing the unshocking and unvarnished truth of the matter. It will be interesting to see how well the different line of argument works, and whether it preserves a better, lengthier appeals process. Clearly, though, most Democrats believe this case will play out along the now well-trodden lines of the Congressional case, and that the courts will require House of Delegates lines to be redrawn.
THE DEMOCRATS’ FANTASY
Democrats have significant leverage on any redistricting plan passed by the GOP legislature, as any such plan requires Governor McAuliffe’s signature**. McAuliffe is widely expected to push for Congressional lines that give Democrats a 4th seat from Virginia. If he doesn’t get that, then Republicans face the specter of the judges redrawing the lines themselves, which could be even worse.
On the House of Delegates case, Democrats’ most fervent wish is for the court to order redrawn lines for a special election in 2016, when Democrats would not only presumably benefit from redrawn lines but also from higher turnout among low-information voters in a presidential year. The Richmond Times-Dispatch‘s Jeff Schapiro writes today about this Democratic dream scenario, with McAuliffe and his allies licking their chops at the potential of picking up a huge number of seats, largely from among vulnerable GOP incumbents in Northern Virginia.
[Political science junkies may know that holding special elections for the House of Delegates for one-year terms in a federal year has precedent from 1982. If you have the time, I highly recommend this detailed contemporary account co-authored by John G. Selph. You can see from that piece that power politics is an old game in Virginia, and some of our oldest players today learned their ropes in a pretty rough-and-tumble environment back then.]
TIMING IS EVERYTHING
McAuliffe wants redistricting on the Congressional lines to happen right away, before other issues lend Republicans any leverage.
Republicans in the House of Delegates, by contrast, want to delay. If you’re a Republican lawmaker facing the prospect of running for re-election in a tougher district in a much tougher year, you want that court case to take long enough that, should there be a final ruling against the old lines, it comes at such a late date that a 2016 special election becomes impractical (hence the importance of using arguments designed to preserve different grounds for appeals). But if your lawyers are telling you the prospect of doing so is pretty slim, then your next best option is to handle redistricting concurrently with a lot of other business so that deals can be made and the negative impacts of redistricting lessened. Ideally that would be during the 2016 General Assembly session.
But the timing may be largely out of the hands of the lawmakers. If the court rules for the plaintiffs and orders redrawn HoD lines for 2016, and if the court sets a deadline prior to next year’s legislative session, and if there are no good avenues for appealing the order in the meantime, then Republicans have precious little leverage in how the lines get redrawn. If, as seems likely, the 4th Circuit postpones the deadline in the Congressional lines case to sometime after this November’s elections, we may find ourselves witness to a special session handling redistricting for both the Congressional lines and the House of Delegates lines at the same time. In which case I’d hate to be among the Republican Congressional incumbents at the bottom of the House GOP caucus’ favorites list. (Dave Brat, watch your back). There’s also nothing saying the GOP can’t throw Senate lines into the mix as well.
But that’s a whole lot of “ifs” to line up to yield this the kind of game changer the Democrats want to see. Clearly there is going to be some realignment of Congressional seats that is going to be unfavorable to Republicans. But there are a lot of timing variables suggesting a good chance that Republicans avoid a 2016 special election for the House of Delegates, particularly if they preserve good enough ground for appeal to drag that case out into late spring or summer next year…and that’s assuming they even lose in the first instance.
Thus, although it makes for an interesting civics exercise, the Democrats excitedly passing around Schapiro’s column today are doing little more than counting a whole lot of chickens before they hatch.
** In previous redistricting suits (all or almost all of which were conducted under the auspices of Section 5 of the Voting Rights Act), the Governor’s signature has been secured on the required redistricting plan. All bets are off, though, if in the context of the court order Republicans decide to play hardball and argue that all that is required to comply with the order is a plan passed by the General Assembly and approved by the judge. We don’t know how sound this approach would be, but raise it based on conversations with certain experts who suggest it is a possibility. Our own Paul Prados had some thoughts on this question back in February, analyzing the verbiage of the court’s order very closely.
