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Notes -
Virginia is voting on redrawing their congressional districts today. Here is the Wikipedia entry.
The main highlight is that it would change Virginia from 6-5 democrat-republican split to a 10-1 split. It is being sold by Democrats as an effort to counter Republican gerrymandering in other states. It is being panned by Republicans as unfair representation, and an election map that looks like Fairfax county (rich county in northern Virginia) gets to elect about half of the state's representatives.
I'm a Virginia resident. So I've been getting lots of mailers about the issue and simple vote "yes" or "no" signs are everywhere.
I'm very frustrated with the whole thing. First for Trump kicking off this fight. Second with the Democrats in Virginia that have made a ridiculously bullshit map. I still have yet to hear anyone from the "yes" side explain how this is good for Virginia other than "fight Trump". I even read one article that had a title implying it would be about voters not feeling represented, and it turns out the content of the article was about democratic leaders addressing the democrat voters in the now single solitary red district. No content about how Republican voters might feel in the 10 other districts.
If this level of bullshit is on the table I feel like other proposals that get shot down for being "crazy" in normal times might end up back on the table. Like a bunch of Virginia counties seceding and joining West Virginia. Or the right to giant congress
The obvious solution is for Congress to just pass a law ending the practice for everyone. The Redistricting Reform Act has been introduced in ~every Congress since 2006 but has never gone anywhere. The most recent version has 55 cosponsors in the House. All Democrats, of course. Frankly, I think the best outcome would have been Rucho v. Common Cause coming out the other way. Since any legislative solution operates to the disadvantage of some fraction of the people who would have to endorse that solution. Something only a half dozen or so legislative bodies in the United States have managed to do.
Philosophically, how could Rucho have come out the other way? There are no constitutional issues with partisan gerrymandering, not least because the two-party system is neither mentioned nor envisioned by the constitution. Any person in any 760,000-person congressional district has the same voting power as any other person in any other district.
On the narrow question in Rucho, I don't see why allegations that districts were drawn for partisan advantage is nonjusticiable while other questions of district drawing (ex, racial discrimination) are. If the court wanted to declare that any question of why districts were drawn particular ways were nonjusticiable that would be consistent. But they haven't done that and I am skeptical they will so I don't see why a partisan motivation, specifically, is nonjusticiable.
On the broader question I don't think it would be unreasonable to read substantive requirements for district drawing into the equal protection clause. Ideally these requirements wouldn't reference partisnaship as such but I think the natural effect of such requirements would be to reduce the possibility for partisan gerrymandering. I think when people complain about a lack of representation when discussing districts like Virginia's new 11, 7, 1, and 8 they are getting at something real and constitutionally cognizable. Compare also the TN 2020 map with the 2024 map. Am I to believe the interests of the people of Nashville are equally well represented when they are all together in the 5th district as when they are split between the 5th, 6th, and 7th district? And the constitution has nothing to say about this effective denial of the ability of a political community to have a representative represent them?
Race is a real and justiciable subject matter for electoral law by constitutional fiat (specifically the 15th amendment).
The constitution doesn’t give representation to “political communities”. The constitution gives representation to states and to the people. What if Nashville voted 85% Democrat? Maybe putting them all in one district is a partisan gerrymander? Is disproportionate representation okay because some areas happen to contain high-densities of single-party voters? There’s no way to get a satisfactory answer to these questions from a judicial process.
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