How Virginia Democrats can retire the state Supreme Court
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How Virginia Democrats can retire the state Supreme CourtThere's a quick—and lawful—way to get redistricting back on track
On Friday night, law professor Quinn Yeargain, a longtime contributor to The Downballot, was struck by an inspired idea. After the Virginia Supreme Court invalidated the April election greenlighting a new congressional map, supporters of the new districts were casting about for ways to overcome that ruling. Quinn’s solution was brilliantly elegant. The state Constitution empowers lawmakers to set the mandatory retirement ages for judges, so why not just lower that age and immediately get an all-new Supreme Court? The Downballot rushed out a piece explaining Quinn’s proposal in detail, and it took off like wildfire.
It also prompted a lot of excellent questions. To answer them, Quinn and David Nir, the publisher of The Downballot, hopped on an impromptu livestream on Saturday evening. Among the topics they address:
And many more. We also fielded some great Q&A from our viewers live. You can watch the entire episode above, or find a transcript below. And if you appreciate this sort of out-of-the-box thinking, we hope you’ll consider supporting our work by upgrading to a paid subscription. This transcript has been lightly edited for clarity. David Nir: Hi folks, it is a Saturday afternoon-slash-evening, and we are so delighted that you’re tuning in for this impromptu Substack Live to discuss a piece by Quinn Yeargain that went totally wildly viral last night on Bluesky. I’m David Nir, publisher of The Downballot, and Quinn is a state constitutional law professor, a longtime contributor to The Downballot, and in particular the 1855 professor of law and democracy and an associate professor of law at Michigan State University. Quinn’s specialty, as I said, is state constitutions. Yesterday, after the Virginia Supreme Court handed down its decision saying that last month’s vote by Virginia voters to allow for a new congressional map to be used was invalid, I think both of us spent the whole day trying to think of, like, wow, how do you get around this? What can Democrats possibly do when faced with a ruling that seemingly is final by the state Supreme Court? And we were tossing ideas back and forth, each sort of thinking quietly on our own. And then late in the day, you came to me with an idea that, as you put it, was this one weird trick that turned out to be like totally brilliant and completely spot on. Quinn Yeargain: Yeah, it was weird. I mean, I did in many ways the thing that the other side does all the time — engaging in sort of motivated reading of the Constitution, in this case the Virginia Constitution, and looking for literally any opportunity that there was. And what I noticed in the Virginia Constitution is that there’s a provision in the Judicial Branch article that allows the legislature to set the retirement age for judges really however they want, and they’re forced to retire at that point, regardless of what term they were elected or appointed to. By statute that’s currently set at 73, and it’s something that the legislature has, according to the Constitution, total power to change as it sees fit. And so my suggestion was they could lower it to the age of 54, which is the age of the youngest justice on the court. They could totally clear the bench. And if the legislature is out of session when this happens, then Governor Spanberger would appoint — so to be clear, this would not immediately reverse the court, but it would allow the court to reverse itself. Every state Supreme Court has rules, as the U.S. Supreme Court does, that allow it to rehear cases. We would be well past that threshold by any time that a new court would be constituted. And some folks have asked, since I put this out there, how would that actually happen? I don’t have a single answer, but it’s not that difficult to get a case that could very well come to the Virginia Supreme Court. It wouldn’t be a redo of the case they just decided, but they would have the opportunity to reverse themselves. The same way it didn’t take the U.S. Supreme Court literally going back to Roe v. Wade to overturn it — they just had another opportunity in the future. Nir: So the current retirement age is 73, and this number is entirely arbitrary. A lot of states have this sort of retirement age in place, but it’s all over the map — it ranges from 70, 72, 73, 75, and in Vermont it’s 90. In all of these cases there was no scientific rationale. It’s not like you wake up on your 74th birthday in Virginia and suddenly you were a tip-top jurist the day before and you can no longer do the job. So it’s all arbitrary in the first place. And I know that age 54 maybe seems kind of young, but Virginia actually contemplates the possibility of its public employees retiring at about that age, which was an amazing thing we discovered last night. Yeargain: Yeah, I mean, some employees can retire at the age of 50. Others, the benchmark is 55, depending on how long they’ve worked. And maybe that’s young, but hey, they’ve put in the effort. And all of this is arbitrary anyway, as you say. 73 is an arbitrary number. So yeah, we can just draw that line at a different point. Nir: So now some people have said, okay, well, why 54? Why get rid of all the judges at once? Perhaps you could set a different threshold. And yeah, if you set it at 70, you would wind up forcing the retirement of the oldest justice on the court, Teresa Chafin, who, as it so happened, was a member of this 4-3 majority that invalidated the vote. And there’s no reason you couldn’t set it at 70. Yeargain: Right. I mean, I’m willing to compromise on this. Like, the moderate position here could very well be to set the retirement age at 70. I’m reasonable about this. There are a lot of ways of doing this, and I think the point is really that there are options — rather than maybe this one option and not a lot of other really good ones. But this does exist, and this is a thing that people can ask their legislators in Virginia to push for. Nir: And I just want to emphasize, Quinn, this rule allowing the legislature to set the retirement age — it’s found in the state constitution. This isn’t a statute. The state Supreme Court can’t overrule it. This rule is very, very explicit. Yeargain: And it’s simple, too. I will say I’ve not done, in the last 24 hours, a complete 50-state survey of all of the constitutions and how they give the legislature this power. But I will tell you that Virginia’s constitution is really unusual in that — maybe this is not the ideal way to use this provision or the ideal thing to do in a world of rainbows and unicorns. Like, that’s one thing. But the provision is there. It’s sort of unilateral disarmament to say that the provision cannot be used. And it’s not to say, again, that I think this is an ideal in all circumstances way to use this provision. Would I draft the provision differently? Probably. But that would require a constitutional amendment to do. We’ve got the text right now as it is. Nir: And I want to specifically note that public employees in Virginia who are members of the Virginia retirement system — which judges are — can retire at the age of 55. They take somewhat reduced benefits, but judges in Virginia already get very generous pension benefits. So the state of Virginia doesn’t think that there’s anything wrong with retiring in your mid-50s. But Quinn, you alluded to this already — this idea was crazy popular on Bluesky. And I also know, from hearing from quite a few people, that it’s circulating among the highest circles of Virginia Democratic politics. But the purpose behind this wasn’t to say, oh, this is what we expect Virginia Democrats to do — though they should do it — but at the very least they should consider it. We want people who believe in democracy to be thinking as creatively as possible. Because that’s certainly what they do on the right. Certainly we’ve seen the Federalist Society dream up a million crazy legal theories that one day get traction. This isn’t a crazy legal theory. This is just using a law that’s already in place. So yeah, let a million flowers bloom. Think outside the box. Yeargain: I totally agree. And I saw somebody earlier today say something to the effect that every time we face major structural challenges or major threats to democratic legitimacy, you have to play constitutional hardball. And there are any number of moments in American history where folks played constitutional hardball. We can see that in small ways, too. Like when legislators leave the state to deprive a quorum — that’s constitutional hardball. That is using the rules that exist to try to achieve a fair result. It doesn’t mean that I need to rewrite the rules to win. It means that I need to refocus sort of what we’re talking about. But the other side doesn’t have that view. The other side has the view that if they’re losing, it’s illegitimate and the rules need to be changed. And when you’re up against that — if the Virginia Supreme Court did not want to win stupid prizes, then it shouldn’t have played stupid games. And I think at a core level, that’s just what’s going on here. We are in a very silly time, but it’s a grave time at the same time. And so, yeah, I think this is a modest proposal, and it is the kind of thing that I think we should be talking about. I think that we need to explore creative options. And look, I am not the biggest fan of Gavin Newsom in the world, but I do think that the way Gavin Newsom responded to this, the way that Louise Lucas responded to this, is the kind of energy that Democrats need to bring to the table right now — to be thinking, okay, what can we possibly do? The procedure, even though the Virginia Supreme Court struck it down, that allowed Democrats to do this in the first place — keeping that special session open and then resuming it — brilliant. The fact that somebody thought of that in that moment allowed them to even put the constitutional amendment forward. That is the kind of energy that we need to be using. Finding the options where they exist and exploiting them as much as possible in ways that are faithful, consistent with the text, but also that allow Democrats to respond to these anti-democratic attacks. Nir: I think the word energy is so right, because what we have seen since the Supreme Court’s Calais ruling — and this astonished even me, I just wasn’t cynical enough — was just the unbelievable intensity and fury with which the GOP and all these groups moved. And that level of urgency is something that Democrats need to seek to match. And the statements from Democrats yesterday really ran the gamut. But you had people like House Speaker Don Scott, who was instrumental in making this happen, and the first line of his statement saying, “we respect the Supreme Court’s ruling.” That’s never the energy that the GOP gives off. They say the ruling is illegitimate, we’re going to do everything we can to fight this. And Attorney General Jay Jones had a much more aggressive response. And Hakeem Jeffries said everything is on the table. Okay — if everything is on the table, well, you know what we’re serving up: a really delicious dish. So if you are a paid subscriber of The Downballot, you can ask us questions in the chat. We’d love to take your questions. Yeargain: Totally, you can just amend the Constitution to set another threshold. And yeah, Republicans may not be thrilled to go along with it — to be forced to give up a potential tool that they might want to use in the future. But I don’t think that voters would have a problem with it. So if we think that the retirement age should be, you know, insert number here, then fine, we can put it in the Constitution, as virtually all states with retirement ages do. I think that in a state that doesn’t have that in its constitution at all, I don’t think that the legislature could compel judges to step down at a certain age anyway. So this is a good thing to have in a constitution. Most states that have retirement ages do. It could just be a constitutional amendment. And I think that’s kind of a helpful way of thinking about this, too — when we think about the U.S. Constitution, we frequently think about it in terms of it being unamendable. And it functionally is. But that’s not the energy we need to bring to thinking about state constitutions. If we don’t like a shitty rule that is in the constitution, fine — we can change it. In virtually every jurisdiction we can change it. In the state with the hardest to amend constitution, New Hampshire, it is still easier to amend than the U.S. Constitution. So we can and should do that. But I don’t, as I said, think it means giving up the leverage before that fix is made. Nir: You landed on this, Quinn, and I helped amplify it precisely because there just aren’t really many other very good ideas. I mean, we’re all ears. If someone wants to present something that can work as quickly as this proposal could... Yeargain: Right. If you’re looking for an option that is going to have any chance of allowing the maps that Virginians voted for to be used this year, I would love to see another option. I really do not think that there is one that is viable, that will achieve anywhere near the same result. Anything else that is being talked about is going to require a much, much longer runway to actually achieve. And so I do think we have to be honest about that. Do I think that this is the best policy in the world devoid of context? If we put on a veil of ignorance, is this the best policy? Maybe not. But we’re not operating in a world without context. We’re operating in a world with context. And in this context, I do think that this will achieve a good, fair, equitable outcome. And I think that there is also a political imperative — but it is a small-d democratic imperative — for Virginia to respond to this, because the more Republican-led states that are allowed to dismantle their Black majority districts, to gerrymander for racial and partisan benefit, the harder it’s going to be for a fair election to take place this year that produces a fair outcome that actually reflects the popular vote. And yeah, all of this is deeply stupid, but they started it. And as Louise Lucas said, fine, they started it, we’ll finish it. I think that this is a way for Virginia Democrats — for Virginia — to effectively finish this, or at least finish it perhaps before Calais changes the entire stratagem here. But to do something that is meaningful to achieve a democratically legitimate outcome. I don’t think that there are other good options in this context. Nir: So we have a couple of questions. One person, Wally, asked if we’ve heard any reaction from elected officials in Virginia. Not yet. I do know, though, as I mentioned earlier, having spoken to a lot of people, that this piece has been passed around at every level. I want to say that this proposal, Quinn — you kind of referred to it a little bit tongue-in-cheek as a modest proposal. The idea behind putting something like this out there is not for folks like us to be making explicit policy. The most broad-reaching version of what an exercise of this power would look like creates the most possible space for Virginia Democrats to possibly adopt it — and maybe narrow it, maybe take a different approach, maybe tweak it in one way or another. If we start by offering a really narrow, hyper-technocratic approach, then it becomes easier to shoot down and then it falls off the table. Instead, we are saying: here’s the whole platter. Pick what you like from it. Yeargain: Yeah, I see that Ben literally just said “not negotiating against yourself,” and that’s actually what was in my mind. When I think about not negotiating against yourself, I think of 30 Rock. Like, if you put out the proposal “let’s lower the age to 70 and get the one justice off the court,” then you’ve now presented people with a binary that they can just answer no to. But if the question is, do you think we should remove the entire Virginia Supreme Court? Well, then you can say, no, I don’t think we should do that, but I do think that the retirement age is set too high as it is right now — and then we need to have important conversations about whatever you want to say after that. It does allow a more nuanced conversation to take place. And I think it also puts Democrats in a better position. As my college therapist said, you ask for 100% of what you want 100% of the time. And yeah, that’s what you want — and you can compromise somewhere along the way. But asking for the highest possible version of what you can achieve, and then settling somewhere more realistic that gives you what you want — I think that is an effective political strategy as well. Nir: Absolutely. And we have seen time and time again recently that voters really cotton to the most aggressive, strongest strategies. I think about Zoran Mamdani here in my hometown of New York City. If you start small, then you’re going to wind up with small or nothing. So it makes sense to start big. Quinn, I want to talk about some of the other ideas that people have had. One thing — it looks like Democrats are moving forward with an appeal to the United States Supreme Court. To me, that just seems DOA. I can’t imagine why SCOTUS would bail out Democrats here, particularly because you have the state Supreme Court interpreting state rules. What would the angle even be for the Supreme Court to get involved, even if it did want to? Yeargain: So a few minutes before we went live, I saw that Rick Hasen, election law expert at UCLA, posted something very brief where he basically predicted — I think it was a prediction because I don’t think a brief has been filed on the merits — that they were going to do independent state legislature theory on steroids. That they were really going to argue that the Virginia Supreme Court’s decision was so out of step with the Virginia Constitution, with Virginia constitutional history, that it does deprive the state legislature of its ability to regulate elections for federal offices. He is incredibly skeptical that that argument would be successful or that the court would take it. I share that, largely because that’s a really bad way to make that argument, and it’s a really shitty argument to make. I don’t think that we need to be empowering more situations to deprive state judiciaries of authority. In general, I don’t think state Supreme Courts or state judiciaries have been the problem when it comes to redistricting in the states — it’s been the legislatures. To pursue a theory that maximizes state legislative power, I think, is badly, badly misreading the room in this moment. And I don’t think it’s something that would be a good precedent to set. And I don’t think the court’s going to do that either. If they weren’t going to do that for North Carolina Republicans, they’re not going to do it for Virginia Democrats. Nir: Another idea that people have suggested is that some of these justices will be hitting mandatory retirement age soon enough or coming to the end of their terms, and there’ll be a chance for replacements. But that doesn’t happen on a timeframe that your proposal would. The soonest there would really be any turnover would be after these elections. So yes, you could get a redo in time for 2028. And you could also have another vote — the reason why the Virginia Supreme Court invalidated the vote is because they said that Democrats passed their amendment after early voting had already begun. You have to pass an amendment both before an election and after an election. And they took this ultra-expansive view of the meaning of the term “election” to mean the very second that the very first vote is cast — a questionable interpretation, not least because there were three justices who dissented. But yeah, you could have Democrats put up a vote in 2027, next year, way before the first votes are cast in early voting, and then do it again afterwards — assuming they retain power in the legislature — and have it all be kosher according to the current Supreme Court. But again, that’s not until 2028. And so then you have this other narrative that’s been circulating. I understand why people might feel this way, but they say, look at what Republicans just did in Florida and Texas. Why can’t Virginia Democrats simply draw new maps? And the answer is that they literally can’t. Yeargain: Yeah, I mean, this is a situation where the Virginia Constitution effectively does not give the legislature any power to draw congressional districts. They do not have any ability to do it. There may be some very narrow circumstances where they could possibly do it, but just as a general matter, they do not have the power to do this. Florida and Ohio are different situations. In Florida, the Fair Districts amendments that Ron DeSantis and the legislature ran roughshod over don’t deprive the legislature of the power to draw maps. What they do is just, in theory, impose requirements of partisan fairness. The more challenging example, I think, is Ohio. Nir: What would happen if Virginia Democrats were like, screw this, we’re ignoring the Constitution, we’re going to pass a map — they pass a map in both chambers and Abigail Spanberger signs it into law. What would happen? Yeargain: That would be a situation where, I mean, eventually the court would step in and say effectively that the legislature cannot do that. You would have massive chaos everywhere because a lot of local election administrators are Republicans. They’re not going to go along with this. And then you’re going to have these court battles that are ultimately going to result in exactly what we’re saying: the legislature cannot do that. The legislature cannot literally just claim power that it does not have, pass a map, and then force it to come into effect. That cannot happen. And I think sometimes the response to this is something I find a little bit dispiriting. I’ll note, as sort of an end note to your point, there’s a good amount of blame that we can put on Virginia Democrats in 2019-2020 for actually pushing this amendment forward. This was a Republican-backed amendment. It passed in a Republican majority and then a Democratic majority. It was a shittily written provision, and it was very, very clear that this was going to favor Republicans. They did not have any obligation to do this. They had no obligation to vote on this a second time. Even if they were spiritually committed to independent redistricting, they could have started over, drafted a new provision that would have functioned better. But it’s the exact same situation that happened in New York, where again, Democrats pushing for a provision like this that is not written very well locks them in. And now that they’re trying to undo it... Nir: And in the most painful way possible. And it’s a really hard one to unlearn, because once you put something in the Constitution — yes, Quinn, as you said, at the state level you can change it. But it’s still a difficult task, as we just saw with this new MAP vote. So you mentioned Ohio, and I want to pause on this for a second, because this one has gotten a lot of traction. And I think it has gotten a lot of traction because people have oversimplified what happened in Ohio. The oversimplification takes this form: it says Ohio Republicans ignored their state Supreme Court, so Virginia Democrats should do the same. And the situations are just so, so different. There’s a lot to say about this — it was a very complicated story that unfolded in Ohio about four or five years ago. But maybe we should start with the amendments that Ohio voters passed in the 2010s. Yeargain: Yeah, so Ohioans have taken a number of cracks at trying to resolve the gerrymandering problem. And going into the post-2020 redistricting, there were requirements that prevented legislators or the mapmakers from drawing maps to favor incumbents or to favor a particular party. Amazing in theory. The way the maps were drawn looked a little bit different depending on whether we’re talking about the legislative maps or the congressional maps, but the same basic standards of partisan fairness and not favoring incumbents apply to both of them. And so we had this ping-ponging back and forth of the mapmakers drawing a map that was struck down, drawing another map that was struck down, drawing another map that was struck down — and then they didn’t actually have maps to use for the August primary at that point. Federal judges stepped in and ultimately ordered that the last set of maps be used for that election. But there was not a lawful set of maps that existed before that point. They were operating on a totally clean slate. And yeah, they were defying the Supreme Court. And yeah, it was a bad thing for them to do. But the reason it played out differently was that the Ohio Supreme Court did not have any authority to impose new maps itself. What it could do was say to the mapmakers, over and over again: this doesn’t work, try again. They did not have any authority under the Ohio Constitution to impose new maps. So they had no authority to do anything. There was no lawful set of maps that existed for the state legislature. So there was a massive amount of resistance to what the Ohio Supreme Court was doing, and it looked very, very different with respect to the state legislature specifically. Nir: Yeah, these amendments that were passed in Ohio in the 2010s — they were extremely baroque. And they came about because Ohio Republicans were worried that the redistricting reform movement was gaining traction. Once again, to the discredit of Democrats, Democrats got on board, and a lot of good-government groups got on board, and they said Ohio finally has independent redistricting. And it was bullshit at the time, because all you had to do was actually read the text of the amendments — which we did. In particular, our colleague Stephen Wolf really burrowed down into them and he could see that there were these loopholes that you could drive a truck through. One of which was an explicit prohibition on the state Supreme Court actually having any authority to issue a remedy if it concluded that maps were unlawfully drawn — Quinn, fill in the rest. Yeargain: Explicit prohibition on the state Supreme Court having any authority to issue a remedy in any of these situations if it concluded that maps were unlawfully drawn. And that’s a really challenging thing, because typically we would say that for a right to exist there must be a remedy — and for Ohio voters to have the right to be represented by members of the legislature and members of Congress drawn from fairly apportioned districts... Nir: In Ohio, you had the state Supreme Court telling the legislature, telling the mapmakers: these are the maps you cannot use. But in Virginia, the state Supreme Court is saying: this is the map you must use. And the map that the state must use is the one that the state Supreme Court itself imposed in 2021, pursuant to the independent redistricting amendment — the one where the Supreme Court had to intervene after the independent commission was unable to reach a compromise. And so the Supreme Court said, this is the explicit map. We are telling you exactly which map you have got to use. And in Ohio, because the Supreme Court was forbidden from imposing a map — it was just “you cannot use any of these maps” — and what wound up happening was pretty disgusting. There was another lawsuit in federal court in Ohio, before a panel of three federal judges, two of whom were Donald Trump appointees, who wound up being totally in the tank for the GOP. And what they said was: we are going to impose a map, because the federal courts are free to impose a map, especially when there is no legal map. The Ohio Constitution cannot bind the hands of the federal courts. And so these two Trump judges said we are going to tell the state of Ohio to use one of the illegal maps. And it was for the crappiest reason, Quinn. It was because state and local election officials had begun making preparations to use that map before the state Supreme Court had struck it down. And so the federal court said, well, it would be easiest — they’ve already made some preparations. It’s illegal, but we’re not going to bother imposing a legal map even though the state Supreme Court said this map is illegal. The federal court said it would be easiest to use this one, so let’s go ahead and use it. There was a dissenting judge who said, look, all they’re going to do is run out the clock — the GOP, that is. And that’s exactly what happened. They ran out the clock. Here, in Virginia, there’s no clock to run out. Yeargain: Right. There’s also, as you say, a set of effectively legal maps that can be used. It’s a very different situation. It’s really the change to the maps that has been struck down. So even in theory, if the legislature had any authority to do anything here, it’s still pushing up against maps that lawfully exist and that it has no authority to change. That is a radically, radically different situation. And yeah, as I said, I do think it’s fair to be questioning the nature of judicial supremacy and all that stuff and to be questioning what it means to comply with a judicial order. We’ve had a lot of those conversations, unfortunately, in the last year and a half. But this is just one of these things that is an immovable obstacle in this respect. And we can argue about it. We can disagree about it. We can try to drag our feet about it. But at the end of the day, there’s not anything we can do about it. And so we can have the moral superiority — I frequently walk around the world with a sense of moral superiority in the respect that I’m not like the other side in terms of tearing down democracy to get what I want. We can have that moral superiority, but it’s not going to equate to anything different legally. Nir: And we explored this a little bit earlier, but I think it bears diving in a little bit further. When people say, just ignore the Virginia Supreme Court, let’s think about what that actually looks like. The Virginia Supreme Court said, use the map that has been in place this entire decade so far — that was used in 2022 and used in 2024. And imagine Democrats said, you know what, to hell with that — we are going to ignore you because that’s what the Ohio Republicans did. And then we’re back to that question we had earlier. That means that Democrats — let’s say the Democrats running the State Board of Elections — would instruct election officials throughout the state. I don’t remember how many cities and counties Virginia has, but it’s a lot. Too many. The State Board of Elections would send a letter to local election officials who actually administer the elections and say: yes, there was a Supreme Court ruling. We are directing you to ignore that ruling and you must instead use the congressional map that voters approved in April. And here are the instructions for how you’re supposed to implement that. And what would immediately happen is that Republican local elected officials and administrators would say, hell no, we are not doing that. They would go to court, and there’s no court in Virginia — state or federal — that would agree with Democrats and say that the Republican election administrator in deep-red Tazewell County has to comply with this. Yeargain: Yeah, that will probably produce contests — challenges to any claim that these members of Congress have been lawfully elected. That would be something that we cannot really defend on the merits. We cannot defend as a process matter. And yeah, there’s always concerns about how the media is going to think about stuff like this. That’s one where I don’t think we have a winning message on that. Because it isn’t a winning message. It is something that is deeply, deeply, fundamentally inconsistent with our system. And again, we can question the system. We should question the system. I love questioning the system. We can’t do it in this one situation. It’s not going to work. Nir: Just as a reminder, if you’re a paid subscriber of The Downballot, you can ask us any questions you have about the possible responses of Virginia Democrats to the state Supreme Court’s ruling, including about Quinn’s piece. Ben asks another question, and it’s a good one. How quickly could we expect something like this to happen? Virginia legislation generally takes some time before it can be implemented. But if it’s part of an appropriations bill, it can take effect right away. And it so happens that Democrats have not yet managed to pass their biannual budget bill this year. So they could attach this to that bill, which they have to pass by June 30. But let’s say they pass it next week — rough time frame for that? Yeargain: I mean, there is a lot of drama over the budget, as I think there always will be in every state forever. It would come into effect immediately if it were included in the budget bill, because budget bills come into effect immediately. My understanding of the Virginia Constitution — and I don’t profess to be the deepest in the weeds expert on the Virginia Constitution — is that non-appropriations matters, policy decisions, can be included in appropriations bills. So it would come into effect immediately. If the legislature is in session, it could immediately elect several new justices to the court. If the legislature is not in session, then Governor Spanberger could make a temporary appointment immediately, effectively. And so that could happen very, very quickly — that would literally just be however long it takes for the governor and/or the legislature to pick someone, which is totally up to them. For a new case, I think there are a lot of ways this could play out. There are a lot of ways, as I said, for state-level officials — the SBOE, the governor, the attorney general, and so on — to sort of create a controversy that somebody would challenge in some form, or for a local clerk to challenge it. I believe it would be possible for the Virginia Supreme Court to exercise original jurisdiction over that, though I’m not 100% sure. But even if they couldn’t, even if a case was filed in lower court, the Virginia Supreme Court should be able to reach down into that lower court at some point, once a decision has been issued, and just take it — in which case it could vacate the opinion, immediately impose a new order, enter new order declaring the constitutional amendment validly ratified. There are situations in history where an amendment that seemed to have not been ratified was later resuscitated by a court. It can pose some challenges when it’s done like 16 years later — we’re not talking about that here. And then at that point, those districts would come into effect. All of this could take place well before primaries would actually occur. However, even if that’s not the case — even if we’re pushing much, much closer to that line — Jeff Landry in Louisiana literally canceled the ongoing primaries that exist. The Virginia Supreme Court, if they were to do this, would absolutely have the equitable power to cancel those primaries and to order that they be rescheduled, that filing reopen, so that the filing and the election can take place under the lawful maps that exist in the Commonwealth of Virginia. So I’m not saying that I think this can happen or that it will happen seamlessly, necessarily. But I do think it’s possible to do this. I would never look to what Louisiana is doing now as inspiration. But on the other hand, they’re showing how possible it is to move really, really quickly. And this is, I think, one of the problems I have sometimes — we can do something that would work, move really, really quickly, do what we have to do. You know, we can take inspiration from some of the asshole tech bros: move fast and break things. Fine. We can do that to achieve the outcome that the voters of Virginia actually asked for. Nir: I cannot think of a more perfect spot to end this impromptu Substack Live. Thank you so much to the 270 people who showed up on a Saturday night to join us for this. Quinn, thank you for that amazing piece. I was so delighted to publish it yesterday and I’m so glad it got so much traction. Really hopeful, eager to see what comes on Monday when folks are back at work, when reporters are busy buttonholing members of the legislature at the state capitol, because they are still very much in session. Thank you so much for being a free subscriber to The Downballot! To support our work, we’d be grateful if you’d become a paid subscriber. |
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