An Emergency Application Written In Desperation
Less than seventy-two hours after the Virginia Supreme Court struck down their redistricting scheme in a 4-3 ruling, Virginia Democrats filed an emergency application with Chief Justice John Roberts Monday, asking the United States Supreme Court to freeze the state court’s decision and restore the map that would have given Democrats a 10-1 advantage in the state’s congressional delegation.
The application was filed by Virginia Attorney General Jay Jones, House Speaker Don Scott, Senate Majority Leader Scott Surovell, and Senate President Pro Tempore Louise Lucas — the full weight of Virginia’s Democratic leadership throwing a Hail Mary at the nation’s highest court in hopes of salvaging a midterm strategy that just collapsed under judicial scrutiny.
“The irreparable harm resulting from the Supreme Court of Virginia’s decision is profound and immediate,” the filing reads. Democrats argued the state court fundamentally misread federal election law by defining early voting as an “election” — a reading that, they claim, conflicts with federal statutes establishing a single congressional Election Day in November. “The Court overrode the will of the people who ratified the amendment by ordering the Commonwealth to conduct its election with the congressional districts that the people rejected,” the application states.
The urgency argument, at minimum, has a factual foundation. Virginia election officials must finalize ballot orders by May 28, military and overseas absentee ballots must go out by June 18, and the August 4 congressional primary is approaching with no certainty about which map governs. The window for orderly election administration, as the filing accurately notes, is closing fast.
What The Legal Experts Are Actually Saying
The problem for Virginia Democrats is that the legal argument may be considerably weaker than the political argument. Ken Cuccinelli, the former Republican attorney general of Virginia who has written and spoken extensively about the redistricting scheme’s unconstitutionality, mocked the emergency application on X within hours of its filing.
“Citing federal cases as persuasive (not controlling, ie, precedential) authority, as the #SCOVA did in its Friday ruling, does not provide the #SCOTUS w/ jurisdiction,” Cuccinelli wrote.
Legal scholar Ed Whelan of the Ethics and Public Policy Center was equally blunt in his public assessment. Democrats make two arguments in the filing, he noted: first, that the Virginia Supreme Court’s interpretation of the state constitution was “predicated on a grave misreading of federal law” — but the court merely cited a Supreme Court precedent as informative context, nowhere close to the standard for demonstrating the court ruled on a federal question. Second, Democrats invoke Moore v. Harper, a case that opened a narrow exception to state court authority over elections. But legal observers say the factual profile of the Virginia case doesn’t fit that exception.
In short: the emergency application appears to be a creative stretch by attorneys acting under extreme political pressure, not a clean presentation of established federal jurisdiction.
What Losing Looks Like When You Don’t Accept It
There is something revealing about the path Virginia Democrats have chosen. Having spent more than $66 million to pass a redistricting referendum that would have locked in a 10-1 Democratic advantage in a state that has trended 6-5, and having watched a state court strike it down for procedural violations in the amendment process, they are now asking the nation’s highest court to override that ruling on an emergency basis — with a legal theory that at least two prominent constitutional scholars have publicly described as a very unlikely fit for Supreme Court jurisdiction.
The 2021 maps they so fiercely oppose were drawn by a pair of redistricting experts appointed by the court itself, after the state’s own bipartisan redistricting commission failed to produce maps. Those court-drawn maps resulted in a 6-5 Democratic edge — a relatively accurate reflection of a genuinely competitive state. The map Democrats tried to install would have replaced that balance with a 10-1 partisan gerrymander. The Virginia Supreme Court said so explicitly in its majority opinion: “These new districts replace the existing nonpartisan map (representing districts split 6-5 between the two major political parties) with a highly partisan gerrymandered map (representing expected districts divided 10-1 between the two major political parties).” The party crying loudest about democracy is the one that spent $66 million trying to make Virginia’s congressional delegation look like California’s.
