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Still No Word From Supreme Court as Virginia Primary Nears

The current justices of the Supreme Court
The current justices of the Supreme Court Fred Schilling, Collection of the Supreme Court of the United States/Creative Commons

It’s been over two months since the Supreme Court heard oral arguments in a redistricting case that could affect Virginia’s legislative maps in the upcoming June 11 primaries.

Followers of the case say the court’s slow response suggests that new maps favored by Democrats are likely to survive through this November’s elections.

“At this point, it would be extraordinary for the Court to issue a decision prior to the June 11 primary that disrupted those elections,” said Rebecca Green, an election law professor at William and Mary College.

Unless the high court intervenes, lawmakers will use new maps drawn by an academic appointed by the U.S. District Court for the Eastern District of Virginia appeals. Those justices ruled last year that lawmakers unconstitutionally packed black voters into 11 districts. They reached that verdict only after the Supreme Court remanded the case back to the lower court in 2017, in a rebuke to an earlier ruling that districts were legal. 

House Republicans ultimately appealed the second lower court ruling to the Supreme Court, arguing that the maps were a legitimate, bipartisan effort to meet the mandates of the Voting Rights Act.

In the oral arguments on March 18, Justice Brett Kavanaugh seemed to sympathize with the House GOP, while the more liberal justices seemed unconvinced.

Green said the justices would be working against precedent if they decided to overturn the new maps.

“There’s a commonly referred to notion referred to as the ‘Purcell Principal’ that courts should take pains to ensure that the status quo is maintained in the run up to elections to prevent voter confusion,” she said. “I think that principal holds here.”

University of Richmond law professor Carl Tobias agreed.

“With each passing day, it seems clearer that the Justices have decided in a way that will allow the elections to proceed with the new maps adopted by the 3-judge panel,” he said. “SCOTUS is especially careful to not interfere with elections when the time for casting ballots is near because it wants to avoid any voter confusion.”

The Supreme Court issues opinions on Mondays. With the Memorial Day holiday, there are just two Mondays left before the primary for the court to step in.

The new maps make districts held by Republican Speaker of the House Kirk Cox and House Appropriations Chair Chris Jones more favorable to Democrats.

Parker Slaybaugh, a spokesman for Cox, suggested that the speaker was prepared to campaign in a far bluer-hued district, which voted for Democratic Senator Tim Kaine over Republican Corey Stewart by a 14 point margin in last year's elections.

“Regardless of what the electoral map looks like in 2019, Republicans are prepared to defend and rebuild our majority in the House,” Slaybaugh said.

Brian Cannon, director of the redistricting advocacy group OneVirginia2021, said the Supreme Court's past verdict and refusal to delay the rollout of new maps were strong indicators that it wouldn't intervene. But Cannon couldn't rule out that possibility.

“The Supreme Court is awfully powerful,” Cannon said. “So they could step in and say, 'We need different maps, old maps, new maps'--they have a lot of latitude here.” 

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Ben Paviour covers courts and criminal justice for VPM News with a focus on accountability.
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