If you’ve been following the news on the recent Virginia redistricting referendum, you know that a lower court judge recently ruled it invalid and it will be appealed, so that it’s almost certain that the Supreme Court of Virginia will issue a ruling on the case. In fact, oral arguments are due to start this coming Monday.

Many people on the right are incensed because the gerrymandering would be so very skewed to favor Democrats, and feel there is an issue of fairness. But Judge Hurley’s ruling against the measure was based on the following:

The proposed ballot question asked: “Should the constitution of Virginia be amended to allow the General Assembly to temporarily adopt new congressional districts to restore fairness in the upcoming elections while ensuring Virginia’s standard redistricting process resumes for all future redistricting after the 2030 census?”

Hurley agreed with the Republicans that the question’s partisan language was misleading and fell short of what is acceptable to present to voters. The judge further sided with Republicans, ruling the referendum violates the state constitution’s timing requirements.

There are other, similar lawsuits, and they may all be joined. One in particular mentions the following issues with the referendum wording:

Republican U.S. Representatives John McGuire and Rob Wittman, who both stand to lose their seats due to the proposed redistricting, filed a similar challenge in Richmond. The congressmen in the Richmond lawsuit also attack the ballot language on multiple grounds, including that it does not fairly reflect the substance of the proposed amendment.

There’s also this tidbit:

The referendum comes six years after Virginia voters overwhelmingly approved a constitutional amendment banning partisan gerrymandering. The Supreme Court of Virginia drew the current map.

Only six years ago; what a difference. And it seems the recent referendum would end up invalidating the Virginia Supreme Court’s own map.

I don’t know how the Virginia Supreme Court will rule. But after it does, can the case be appealed to SCOTUS, and if so what is SCOTUS likely to decide?

If you think the results can be challenged in SCOTUS because the new districts are so unfairly partisan, not only does that not seem to have been one of the issues in the cases at hand, but the governing SCOTUS precedent on that would be Rucho, decided in 2019 [emphasis mine]:

Rucho v. Common Cause, No. 18-422, 588 U.S. 684 (2019) is a landmark case of the United States Supreme Court concerning partisan gerrymandering. The Court ruled that while partisan gerrymandering may be “incompatible with democratic principles”, the federal courts cannot review such allegations, as they present nonjusticiable political questions outside the jurisdiction of these courts.

The case was one of three heard in the 2018 term dealing with issues related to partisan gerrymandering used in the districting plans of states. It was combined with Rucho v. League of Women Voters of North Carolina, and its decision included the Court’s judgment on Lamone v. Benisek, a partisan gerrymandering case from Maryland. The 5–4 decision, divided along ideological lines, left in place North Carolina’s congressional districts, which favored the Republican Party, and Maryland’s congressional districts, which favored the Democratic Party.

The breakdown was that it was the conservative wing of the Court that said it could not do a thing about even nakedly partisan gerrymandering, and the liberal wing that wanted to rule against the practice:

The Court issued its decision in Rucho and Lamone on June 27, 2019. In the 5–4 majority opinion, the Court ruled that “partisan gerrymandering claims present political questions beyond the reach of the federal courts”, vacating and remanding the lower courts’ decisions with instructions to dismiss for lack of jurisdiction. Chief Justice John Roberts delivered the majority opinion, joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Roberts made clear that partisan gerrymandering can be distasteful and unjust, but that states and Congress have the ability to enact laws to curb excessive partisan gerrymandering.

Justice Elena Kagan wrote the dissenting opinion, joined by Justices Ginsburg, Breyer, and Sotomayor. Kagan’s opinion was critical of the majority: “Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.”

On the other hand, gerrymandering for racial discrimination is something that SCOTUS can rule on. But as far as I can tell, no one has alleged that the Virginia districts are being redrawn for racially discriminatory reasons. Although race and politics can and often do overlap, there’s also an assumption that gerrymandering goals are political unless clearly racial. So if there is any new challenge to the Virginia redistricting on racial grounds it would probably fail, and if there’s any challenge that it’s politically partisan, Rucho would almost certainly control and SCOTUS would not act.

But the procedural challenges and the language challenges remain, and are the heart of the legal matter. Could or would SCOTUS decide either the procedural question or the wording question? I doubt it, although in a great deal of searching I haven’t yet found anything that directly answers the question. However, it generally appears that SCOTUS ordinarily defers to states on such matters. There always could be an exception, however.

In sum, I think whatever the Supreme Court of Virginia decides, it’s very likely to be the final word on the matter.