Democrats, media and legal scholars float wild proposals to win Virginia redistricting battle

In the wake of the party’s failed Virginia redistricting gambit, Democrats and their allies in the media and academia have been floating radical proposals to snatch victory from the jaws of defeat. In response to their defeat at the Virginia Supreme Court, the Democratic leaders have promised to remain defiant and have labeled the judicial decision “undemocratic” and discriminatory against minorities. 

“Even after being aided and abetted by blatantly undemocratic court decisions, the failed GOP majority will not be able to gerrymander themselves back into power,” Rep. Hakeem Jeffries, the House Democratic Minority Leader, wrote in a letter to his caucus on Monday. “Republican extremists spent the last few days applauding their ongoing effort to rig the midterm elections based on two egregious judicial decisions dripping with far-right partisanship,” he also wrote. “We remain undeterred.”

They gambled and lost

The Virginia referendum to change the congressional maps was a gamble for Democrats. The party had to circumvent the state constitution, amended by referendum in 2020 to create the Virginia Redistricting Commission – a bipartisan body tasked with drawing the state’s maps. The Democrats needed to temporarily suspend that process with another amendment. 

But, to do so before the midterm election, party leadership had to bend the rules of the state’s amendment process – which requires an amendment be proposed in one session, an intervening election to take place, and then voted on again in the subsequent session. The problem is that the Virginia House of Delegates voted to propose its amendment after the 2025 election was already underway, which invalidated the process, the Virginia Supreme Court ruled.

The ruling is devastating for Democrats because it means the party is likely to come up short in its redistricting brawl with Republicans ahead of the midterm elections this year. 

But, some state officials, Democratic Party leaders, and its academic and media allies are not giving up. Some have proposed radical solutions to undo the court’s ruling in order to secure more Democratic congressional seats. 

Not democratic? Questioning the right of a high court to interpret law

“The referendum wasn’t just an election; it was the people of Virginia exercising their right to amend their Constitution as they see fit,” New York Times columnist Jamelle Bouie wrote on Sunday.  

“On what basis can the State Supreme Court, a creature of that Constitution, invalidate a sovereign decision of the whole people?” he asked. “The court may have the right to say what the law is, but this doesn’t extend to a veto over the people’s right to change the fundamental rules of their political system.” 

Bouie called on Democrats to “meet the moment” to combat the Virginia Supreme Court’s decision, seeming to suggest using whatever means necessary to overrule the court’s ruling.   

One law professor who has been involved with Democratic politics in the past, Quinn Yeargain, proposed that Virginia Democrats should pass legislation to lower the retirement age of its Supreme Court justices – forcing all of them off the court and allowing lawmakers to appoint a new slate. Lawmakers could then appeal the redistricting referendum to the new court.  

"Democrats might prefer other solutions, but if they want to see the will of the voters respected in time for the November elections, there are virtually no other options — and none with as good a chance of success as this one,” Yeargain, who is a professor at Michigan State University College of Law, posted to Substack. 

Lest the proposal be considered fringe, Virginia Democratic lawmakers and Minority Leader Jeffries reportedly discussed the proposal in a call over the weekend to discuss possible ways the Democrats could challenge the Virginia Supreme Court ruling. The group reportedly did not settle on a strategy. 

Jeffries letter to his caucus on Monday makes no reference to any attempt to forcibly retire the state’s justices. The proposal faced swift pushback from Republican state lawmakers and conservative legal scholars.  

“In the unlikely chance that this could pass the General Assembly […] it would be difficult to engineer before the midterm elections, given the likely challenges. However, it is the inclination of some to try such measures that is chilling,” wrote Jonathan Turley, a constitutional law professor at George Washington University Law School. 

“If Democrats will try to fire the Virginia Supreme Court over one redistricting case, what will they do the next time a court tells them no? This is not about maps anymore. It’s about whether the rule of law survives in Virginia,” Republican state senator Glen Sturtevant said.

State officials not all on board with the idea

However, key state officials are opposed to moving forward with such a radical proposal. 

Democratic Virginia Senate Majority Leader Scott Surovell on Monday reportedly ruled out pursuing such a measure. He told the Virginia Scope, a local outlet, that drastic measures would not be taken, in part because the state’s Department of Elections warned that any changes to the map after May 12 would disrupt the primary and midterm elections processes.

Governor Abigail Spanberger, who was inaugurated earlier this year, also said that she does not support forcibly retiring the state’s justices for redistricting.

Virginia Democratic leaders on Monday submitted an emergency appeal to the U.S. Supreme Court, asking them to intervene and allow the commonwealth to use the maps redrawn by the Democratic legislature. The leaders argue that the state’s court ruling was “deeply mistaken on two critical issues of federal law with profound practical importance to the nation.” By invoking federal law, the Democratic official hopes to provide the grounds for the federal Supreme Court to intervene.