Virginia’s Congressional Districts Are Unconstitutional

Category: Print Issues

Virginia’s Congressional Districts Are Unconstitutional

Kevin C. Walsh

Volume 33

Introduction

The Elections Clause in Article I of the U.S. Constitution governs how congressional districts are to be established. It provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”¹

Virginia’s current congressional districts were not established in compliance with the Elections Clause because they were prescribed neither by “the Legislature,” nor by any other body exercising legislative power.² Instead, Virginia’s current congressional districts were established by the Supreme Court of Virginia, which under the Constitution of Virginia only possesses judicial power and administrative authority incidental to the exercise of judicial power.³ Because the Supreme Court of Virginia had no legislative power to exercise when it established Virginia’s current congressional districts in 2021, those districts are unconstitutional under the Elections Clause.

That is all there is to this argument for unveiling the unconstitutionality of Virginia’s current congressional districts as established in 2021. Here it is in the form of a syllogism:

Major Premise: To be validly established by “the Legislature” of a State in compliance with the Elections Clause, congressional districts must be established by an exercise of legislative power.⁴

Minor Premise: The Supreme Court of Virginia did not exercise the legislative power of Virginia when it established Virginia’s current congressional districts in 2021.⁵

Conclusion: Virginia’s current congressional districts were not validly established in 2021 by “the Legislature” of Virginia in compliance with the Elections Clause.

The syllogism is logically valid, so the conclusion holds if both premises are true. For the sake of exposition, we can label the Major Premise the “Legislative-Power-Required Premise” and the Minor Premise the “Legislative-Power-Absent Premise.” Before probing these premises as applied to Virginia’s current congressional districts, Part I explains how those congressional districts were established by the Supreme Court of Virginia. Part II presents the argument establishing their unconstitutionality under the Elections Clause. Part III addresses what comes next: Virginia lawyers must find a way to present to the Supreme Court of Virginia the state-law issues at the core of the federal constitutional problem identified in this Essay. Neither in Part III nor elsewhere in this Essay do I advocate one single best way to answer this call to action. There are many roads to the Commonwealth’s highest court. This Essay’s argument invites attention to the need for a just solution, but the point of this Essay is just to pinpoint the problem. The Essay’s conclusion is therefore also its title: Virginia’s congressional districts are unconstitutional.

I. The Supreme Court of Virginia’s 2021 Final Redistricting Order

Acting “on behalf of a unanimous Supreme Court of Virginia,” Chief Justice Donald Lemons issued an order on December 28, 2021, that purported to establish legislative districts in Virginia for congressional and state elections going forward.⁶ This was the Supreme Court of Virginia’s first time carrying out a function that had devolved on the court through a state constitutional amendment ratified the year before.⁷ The 2020 Redistricting Amendment erected a new Virginia Redistricting Commission as the primary mechanism for redistricting in conjunction with the General Assembly.⁸ The Amendment also installed the Supreme Court of Virginia as a backup system in case the Commission or General Assembly failed to establish new legislative districts.⁹

After the 2020 Redistricting Amendment’s primary mechanism for redistricting failed over the course of the next year, Virginia’s backup mechanism kicked in. The Supreme Court of Virginia took on the responsibility for redistricting that arose “upon the failure of the Virginia Redistricting Commission to submit a redistricting plan by the governing statutory deadlines.”¹⁰

The court carried out its electoral-district-establishment function in one order that approved the work of two special masters who had drawn three Final Redistricting Maps (one for members of the Virginia House of Delegates, one for members of the Virginia Senate, and one for members of the United States House of Representatives).¹¹ The court’s unanimous approval of its appointees’ unchanged maps came after the court considered a Final Memorandum that the court-appointed special masters had submitted the day before, as well as comments from members of the public.¹²

The court’s 2021 Final Redistricting Order communicates the court’s unanimous legal conclusion that “in preparing the Final Redistricting Maps, the Special Masters have followed the Court’s instructions and have fully complied with federal and state law.”¹³ This blanket legal conclusion is further specified by determinations that the Special Masters had appropriately followed several sources of applicable law “in the following order of precedence”:

The United States Constitution, particularly Article I, Section 2, and the Equal Protection Clause of the Fourteenth Amendment;
Applicable federal statutes, particularly the Voting Rights Act of 1965, 52 U.S.C. § 10301;
The Constitution of Virginia, particularly Article II, Sections 6 to 6-A; and
Applicable Virginia statutes, particularly Code §§ 30-399(E), 24.2-304.04, and any other relevant provision in Chapter 3 of Title 24.2 of the Code of Virginia.¹⁴

After holding that “[t]he Final Redistricting Maps prepared by the Special Masters are fully compliant with constitutional and statutory law,” the Order declares the court’s further legal conclusion that these sources of law were “applied, as the court directed, in an apolitical and nonpartisan manner.”¹⁵

The operative part of the Final Redistricting Order begins with the recital that the court is acting “for the foregoing reasons and under the constitutional and statutory authority of the Supreme Court of Virginia.”¹⁶ It is followed by three numbered paragraphs.

Paragraph (1) incorporates the Special Masters’ Final Districting Maps by reference and states that these maps “are approved and adopted.”¹⁷ This paragraph provides that “effective immediately, the Final Redistricting Maps shall constitute and establish the voting districts for the Virginia House of Delegates, the Senate of Virginia, and for Virginia’s representatives to the United States House of Representatives.”¹⁸

Paragraph (2) is directed to implementing officials. It orders that

[t]he State Board of Elections and the Virginia Department of Elections shall immediately implement the voting districts established by the Final Redistricting Maps to ensure that the 2022 Congressional elections, and any future regular primary or general elections that may be held for the Virginia Senate, Virginia House of Delegates, and Congress will proceed as scheduled.¹⁹

This part of the Order also prohibits “[a]ny further use of current voting districts as set forth in Virginia Code §§ 24.2-304.03 (House of Delegates districts), 24.2-303.3 (Senate districts), and 24.2-302.2 (Congressional districts) for any regular primary or general election.”²⁰

Paragraph (3) orders the Clerk of Court to forward copies of the Order to certain legislators and legislative officials as well as “to the Reporter of Decisions for publication in the Virginia Reports.”²¹

II. The Argument for Unconstitutionality of the Current Congressional Districts

The basic argument for the unconstitutionality of Virginia’s current congressional districts has already been set forth above in syllogism form. In this part, I first analyze and expound its two premises, then assess the scope of the resulting unconstitutionality.

A. The Legislative-Power-Required Premise

The Legislative-Power-Required Premise follows from the text of the Elections Clause and its consistent interpretation over time by the Supreme Court of the United States. The Elections Clause states that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”²² The most recent decision in which the Supreme Court of the United States has expounded the meaning of “prescribed in each State by the Legislature thereof” is Moore v. Harper.²³143 S. Ct. 2065, 2074 (2023). In Moore, Chief Justice Roberts wrote an opinion for the Court that carried forward from the Court’s Elections Clause precedent the “core principle . . . ‘that redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking.’”²⁴ Applying this core principle to the question “whether the Elections Clause insulates state legislatures from review by state courts for compliance with state law,”²⁵ the Court held that “[t]he Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”²⁶ Roberts connected this holding back to the Court’s 1932 decision in Smiley v. Holm that the lawmaking process contemplated by the Elections Clause included a governor’s veto.²⁷ Analogizing review of the legislated districts by state courts for compliance with state law to the vetoing of legislation establishing those districts, the Chief Justice wrote that “[t]he reasoning we unanimously embraced in Smiley commands our continued respect: A state legislature may not ‘create congressional districts independently of’ requirements imposed ‘by the state constitution with respect to the enactment of law.’”²⁸

The architects of Virginia’s 2020 Redistricting Amendment may have been relying on an overreading of the United States Supreme Court’s 2015 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission.²⁹ In AIRC, the Court interpreted the Elections Clause to allow districts established by an independent commission rather than the state legislature.³⁰ An essential premise in the Court’s reasoning, though, was that the Arizona Independent Redistricting Commission was exercising delegated legislative power.³¹

In his opinion for the Court in Moore, Chief Justice Roberts described AIRC as determining that “the people of Arizona retained the authority to create ‘an alternative legislative process’ by vesting the lawmaking power of redistricting in an independent commission.”³² Roberts further explained “that although the Elections Clause expressly refers to the ‘Legislature,’ it does not preclude a State from vesting congressional redistricting authority in a body other than the group of elected officials who ordinarily exercise lawmaking power.”³³ This delegation of the legislative power of redistricting to another body did not, however, transform the nature of the redistricting power required under the Elections Clause into a non-legislative power. To the contrary, Roberts relied directly on AIRC in reaffirming in Moore that “fashioning regulations governing federal elections ‘unquestionably calls for the exercise of lawmaking authority.’”³⁴ The legislative nature of redistricting authority under the Elections Clause was the foundation for the Court’s conclusion that “the exercise of such authority in the context of the Elections Clause is subject to the ordinary constraints on lawmaking in the state constitution.”³⁵

In sum, the teaching of the Court’s Elections Clause precedents confirms the best reading of the Elections Clause’s text: congressional redistricting requires the exercise of legislative power. We can therefore treat the truth of the Legislative-Power-Required Premise as established and move on.

B. The Legislative-Power-Absent Premise

The Legislative-Power-Absent Premise follows from the Order and its judicially promulgated rules and procedures for redistricting. These are to be interpreted in light of the Declaration of Rights and the Division of Powers Clause in the Virginia Constitution, the Elections Clause in the U.S. Constitution, and caselaw authoritatively interpreting both.

The Order does not contain any indication that the court engaged in an exercise of delegated legislative power. The Order reveals, rather, that the court acted on its own authority under Virginia’s Constitution and laws in addition to the regulations issued within its Article VI judicial power. In contrast with the intended function of the Virginia Redistricting Commission, the Supreme Court was intended to operate, and actually did operate, as an independent judicial backup system. The Order begins by announcing that “upon the failure of the Virginia Redistricting Commission to submit a redistricting plan by the governing statutory deadlines, the Supreme Court of Virginia assumed responsibility for the establishment of voting districts.”³⁶ At its end, the Order requires transmission “to the Reporter of Decisions for publication in the Virginia Reports.”³⁷ In between, the Order announces the Supreme Court of Virginia’s legal conclusions about the Final Redistricting Maps prepared by its appointed Special Masters, and it orders that the legislative districts in those maps be approved and adopted.³⁸ The Order was signed by the Chief Justice “on behalf of a unanimous Supreme Court of Virginia,” with the names of the other six Justices listed immediately below.³⁹

The Supreme Court of Virginia does not possess legislative power, and the court could not have exercised a power that it did not possess. In a Declaration of Rights provision traceable back to the original Article I, Section 5 of the Virginia Constitution of 1776, the current Article I, Section 5 of the Constitution of Virginia states that “the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct.”⁴⁰ This structural separation of powers is repeated and further specified in the Division of Powers Clause in Article III, Section 1: “[t]he legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others, nor any person exercise the power of more than one of them at the same time.”⁴¹

We focus here on the Article III Division of Powers Clause because it includes two specific prohibitions that complement its command—copied from Article I, Section 5—to keep the departments distinct. The Article III, Section 1 Division of Powers Clause adds to the Article I, Section 5 language providing that “[1] none exercise the powers properly belonging to the others, [2] nor any person exercise the power of more than one of them at the same time.”⁴² This Division of Powers Clause presupposes distinct powers distributed elsewhere in the Constitution of Virginia. Those other locations are the Vesting Clauses of Articles IV, V, and VI. Article IV, Section 1 provides that “[t]he legislative power of the Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and House of Delegates.”⁴³ Article V, Section 1 provides that “[t]he chief executive power of the Commonwealth shall be vested in a Governor.”⁴⁴ Article VI, Section 1 provides that “[t]he judicial power of the Commonwealth shall be vested in a Supreme Court and in such other courts of original or appellate jurisdiction subordinate to the Supreme Court as the General Assembly may from time to time establish.”⁴⁵ The Division of Powers Clause in Article III ensures that the distribution of these powers to distinct departments in Articles IV, V, and VI ends in their actual exercise by the different departments.

The 2020 Redistricting Amendment did not explicitly or implicitly delegate legislative power directly to the Supreme Court of Virginia in violation of Virginia’s venerable separation of powers.⁴⁶ The Amendment required the Supreme Court of Virginia to carry out a backup districting function, but it did not grant or authorize the delegation of legislative power to the Supreme Court of Virginia to carry out that function through lawmaking.⁴⁷

The General Assembly placed the Amendment’s novel primary mechanism for redistricting, the Virginia Redistricting Commission, as an agency within the legislative branch.⁴⁸ This was appropriate to the Commission’s office under the 2020 Redistricting Amendment, which is to propose plans for adoption by the General Assembly, not to adopt those plans on its own.⁴⁹ The Amendment explicitly incorporated the exercise of legislative power by the General Assembly within the Commission. By contrast, the 2020 Redistricting Amendment’s backup mechanism of district establishment provided for the Supreme Court of Virginia to establish the districts on its own authority based on proposals supplied by court-appointed special masters.⁵⁰ Under this design, and in contrast with the Virginia Redistricting Commission, the Supreme Court of Virginia’s backup duty was to establish districts without further action by the General Assembly. That is exactly what the court did.⁵¹

The use of non-legislative power to redistrict in Virginia is a novelty introduced by the 2020 Redistricting Amendment. Before that Amendment, congressional redistricting could only be accomplished in the first instance through legislation enacted by the General Assembly.⁵² As the Supreme Court of Virginia explained in an 1884 decision, “[t]he laying off and defining the congressional districts is the exercise of a political and discretionary power of the legislature, for which they are amenable to the people, whose representatives they are.”⁵³

It would be wrong to interpret the 2020 Redistricting Amendment to require what the Division of Powers Clause prohibits. Because judicial power is the only power the court possesses, the Supreme Court of Virginia should not be understood to have exercised legislative power in carrying out its duty to establish electoral districts through promulgation of its Final Redistricting Order. To conclude otherwise would require concluding that the Supreme Court of Virginia violated the Virginia Constitution’s Declaration of Rights and its Division of Powers Clause. That is because the 2020 Redistricting Amendment neither required, nor authorized, the Supreme Court of Virginia to exercise legislative power on its own or as the recipient of a delegation from the General Assembly.

In legislation implementing the 2020 Redistricting Amendment, the General Assembly required the Supreme Court of Virginia to adopt rules and procedures for the court to carry out its backup redistricting function.⁵⁴ When the court established rules pursuant to this statutory authority, however, it was not exercising legislative power, but rulemaking authority explicitly granted in Article VI, Section 5 of the Constitution of Virginia. This section in the Virginia Constitution’s judiciary article grants the Supreme Court of Virginia “authority to make rules governing the course of appeals and the practice and procedures to be used in the courts of the Commonwealth,” with the limitation that “such rules shall not be in conflict with the general law as the same shall, from time to time, be established by the General Assembly.”⁵⁵

The Supreme Court’s Rule 1 of its “Rules and Procedures for Implementing the Requirements of Article II, Section 6-A of the Constitution of Virginia” states that “[t]he Supreme Court of Virginia shall be governed by the Constitution of Virginia.”⁵⁶ This explicitly confirms what the court’s practice implicitly conveys, namely that the court’s creation of new districts did not require the court to violate or to imply an exception to Article I, Section 5 of the Declaration of Rights or to the Division of Powers Clause in Article III, Section 1.

The court’s description in Rule 2 of the task of its appointed special masters further underscores that the Court understood itself to be establishing districts by exercise of its own judicial power rather than standing in the shoes of a Commission that could only propose plans for adoption by the General Assembly.⁵⁷ In this backup process, the special masters had a task parallel to the Virginia Redistricting Commission—the development of proposed plans—while the court had a task parallel to the General Assembly—the establishment of districts.⁵⁸

The Supreme Court of Virginia also included in its redistricting rules a recusal requirement for those with specified family or household relationships with “a member of the Congress of the United States or of the General Assembly.”⁵⁹ This recusal requirement is appropriate given the non-legislative nature of the power being exercised in this judicial backup mechanism. It contrasts with the explicitly partisan composition of the Virginia Redistricting Commission, for which half of the commissioners are required to be state legislators with specified party affiliations.⁶⁰

In evaluating the adequacy of the court’s Final Redistricting Order under the Elections Clause, the nature and limits of the Supreme Court of Virginia’s authority must be measured by the Constitution and laws of Virginia. The question that the Supreme Court of the United States answered in Moore v. Harper was whether “[the Elections] Clause vests state legislatures with authority to set rules governing federal elections free from restrictions imposed under state law.”⁶¹ In unequivocally answering “no,” Chief Justice Roberts explicitly linked this answer in Moore to the Court’s reasoning in AIRC: “[t]he significant point for present purposes is that the Court in Arizona State Legislature recognized that whatever authority was responsible for redistricting, that entity remained subject to constraints set forth in the State Constitution.”⁶²

In 2021, the Supreme Court of Virginia rather than the Virginia Redistricting Commission ended up acting as the Commonwealth of Virginia’s “authority [that] was responsible for redistricting.”⁶³ When it established new congressional districts in its Final Redistricting Order, “that entity remained subject to constraints set forth in the State Constitution.”⁶⁴ As long as those constraints include the separation of powers expressly included in Virginia’s Constitution since 1776, the Legislative-Power-Absent Premise is established. Before unpacking the scope of invalidity under the Elections Clause that results from combining this Legislative-Power-Absent Premise with the Legislative-Power-Required Premise discussed above, it is appropriate to consider the strongest counterarguments that can be made against the Legislative-Power-Absent Premise.

A first counterargument to consider is that the 2020 Redistricting Amendment implicitly amended or authorized an exception to the separation of powers in the Virginia Constitution’s Declaration of Rights and Division of Powers Clauses. The most persuasive version of this argument takes the form of “ought implies can.” From the backup mechanism in the 2020 Redistricting Amendment by which “the districts shall be established by the Supreme Court of Virginia,” an interpreter should imply the existence of power by which the districts can be established by the Supreme Court of Virginia.⁶⁵

This is a forceful counterargument. A more plausible interpretation, though, is that the 2020 Redistricting Amendment authorized the Supreme Court of Virginia to establish districts using the judicial power it already possessed rather than deputized the court to exercise new legislative power it did not previously have. This “use-what-you-already-have” interpretation better fits the passive-voice language of the 2020 Redistricting Amendment—”shall be established by the Supreme Court of Virginia.”⁶⁶ Nor can this counterargument enlist the help of the principle that “[i]f there is a conflict between a general provision and a specific provision, the specific provision prevails.”⁶⁷ There is no conflict between the 2020 Redistricting Amendment and any other part of the Virginia Constitution requiring that redistricting must be done by the “Legislature” or through the exercise of legislative power. The problem calling forth the counterargument’s implication of a new legislative power to be exercised by the Supreme Court of Virginia is that court’s lack of legislative power required by the federal Elections Clause.

To be clear, this Essay’s argument does not depend on the existence of conflict between or among any provisions of Virginia’s Constitution.⁶⁸ The federal constitutional problem it identifies, instead, is that the judicial backup mechanism evidently supplied by the 2020 Redistricting Amendment is inadequate under the Elections Clause. With respect to the kind of power exercised by the Supreme Court of Virginia in its Final Redistricting Order, moreover, the Division of Powers Clause in Virginia’s Constitution speaks more specifically than the “shall be established” language of the 2020 Redistricting Amendment.⁶⁹

Another interpretive principle that one might use to bolster a counterargument resting on an implied amendment to or exception from the Division of Powers Clause is that the provision of a judicial backup mechanism in the 2020 Redistricting Amendment is to be interpreted in a way that validates rather than invalidates the Final Redistricting Order.⁷⁰ This is a sound interpretive principle, but inapplicable here for two reasons. First, and related to the argument above, it is unnecessary to treat the Final Redistricting Order as an exercise of legislative power to validate that Order under the Virginia Constitution. The requirement that congressional districting be done through an exercise of legislative power stems entirely from the Elections Clause in the federal Constitution.⁷¹ The 2020 Redistricting Amendment does not need to be interpreted to deputize the Supreme Court of Virginia with legislative power to comply with state constitutional requirements for establishing state legislative districts. And the 2020 Redistricting Amendment’s judicial backup mechanism is most naturally interpreted as requiring the Supreme Court of Virginia to establish districts using the judicial power it already possessed rather than also giving it new legislative power in derogation of the Declaration of Rights and the Division of Powers Clause.

A second problem with deploying the principle of interpreting to validate rather than invalidate is that the counterargument’s application of this principle presupposes what it is being advanced to establish. Unless the 2020 Redistricting Amendment altered or authorized an exception to the Declaration of Rights and the Division of Powers Clause, to interpret the Final Redistricting Order as an exercise of legislative power would be to invalidate that Order across the board. The Order would be invalid in its application not only to the congressional districts but also to the Virginia House of Delegates and Virginia Senate districts as well. In the absence of an implied amendment or exception, understanding the Final Redistricting Order as an exercise of legislative power would result in it violating either or both of the specific prohibitions in Article III, Section 1. If the Final Redistricting Order is understood purely as an exercise of legislative power, it runs afoul of the prohibition that “[t]he legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others . . . .”⁷² If the Final Redistricting Order is instead understood as a mixture of legislative and judicial power, it runs afoul of the prohibition “nor any person exercise the power of more than one of them at the same time.”⁷³ In the absence of an amendment or exception to these prohibitions implied from the 2020 Redistricting Amendment, then, treating the Final Redistricting Order as an exercise of legislative power invalidates more than it validates.

Instead of interpreting the 2020 Redistricting Amendment to impliedly amend or make an exception to the Declaration of Rights and the Division of Powers Clause, another kind of counterargument targets the claim that treating the court’s Final Redistricting Order as an exercise of legislative power actually would violate the Declaration of Rights and the Division of Powers Clause. If this counterargument were correct, then no amendment or exception to Virginia’s separation of powers would need to be implied.

The best counterargument of this “a-little-mixing-of-powers-is-okay” sort would probably attempt to rely on the “whole power” doctrine. This doctrine provides that “the whole power of one of these [legislative, executive, or judicial] departments should not be exercised by the same hands which possess the whole power of either of the other departments, but that either department may exercise the powers of another to a limited extent.”⁷⁴

Whatever the continuing vitality of this doctrine after the 1969 amendment to the Division of Powers Clause which explicitly provides for the exercise of mixed powers by administrative agencies,⁷⁵ the whole power doctrine is inapplicable here for two reasons. First, the role of the Supreme Court of Virginia as a backup mechanism in the 2020 Redistricting Amendment is to exercise the whole power of legislative districting on its own authority, and not as an agent of the General Assembly. The Supreme Court of Virginia’s backup role under the 2020 Redistricting Amendment is triggered by the failure of the Virginia Redistricting Commission or General Assembly, but once activated, the Supreme Court of Virginia’s exercise of its redistricting authority is not subject to the oversight of the General Assembly or any other delegee of the General Assembly’s legislative power.⁷⁶

Second, the “whole power” doctrine does nothing to establish that the Supreme Court of Virginia possesses even a little bit of “[t]he legislative power of the Commonwealth.”⁷⁷ The “whole power” counterargument does not undermine this Essay’s interpretation of the 2020 Redistricting Amendment as assigning a backup function to the Supreme Court of Virginia but not deputizing the court to exercise newly delegated legislative power. In fact, the judicial backup mechanism’s complete substitution of redistricting by the Supreme Court of Virginia for redistricting by the Virginia Redistricting Commission and General Assembly undermines any attempt to treat the Supreme Court of Virginia as a kind of administrative agency exercising mixed legislative and judicial powers.⁷⁸

Another line of response to the argument that “a little mixing of powers is okay” under Virginia’s Division of Powers Clause is that the argument is inconsistent with the way that the Virginia Constitution was amended in 1969 to account for the role of administrative agencies in Virginia government. The 1969 revision maintained the same basic separation of powers principle that had been in the Virginia Constitution since 1776: “The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others, nor any person exercise the power of more than one of them at the same time.”⁷⁹ The 1969 Revision added “an exception to the basic principle”⁸⁰ in Article III, Section 1: “provided, however, administrative agencies may be created by the General Assembly with such authority and duties as the General Assembly may prescribe. Provisions may be made for judicial review of any finding, order, or judgment of such administrative agencies.”⁸¹

The 1969 proviso authorizing the exercise of mixed powers by administrative agencies not only demonstrates how the people of Virginia made an explicit exception to their established separation of powers in their Constitution when they intended to do so, but also reveals that the Supreme Court of Virginia is not an administrative agency within this proviso. The Supreme Court of Virginia is not “created by the General Assembly with such authority and duties as the General Assembly may prescribe.”⁸² Article VI of the Constitution of Virginia creates the Supreme Court of Virginia, vests that court with the judicial power of the Commonwealth, and specifies the Supreme Court’s jurisdiction, authority, and duties.⁸³ The General Assembly’s more specific legislative prescriptions for the Supreme Court must fit within these constitutional constraints. The primary relationship between the Supreme Court of Virginia and administrative agencies contemplated in Article III, Section 1 is “judicial review of any finding, order, or judgment of such administrative agencies.”⁸⁴ This relationship presupposes an institutional distinction inconsistent with treating the Supreme Court of Virginia itself as an administrative agency that simultaneously legislates new districts and judicially reviews those legislative products in a single final redistricting order. The administrative agencies within the judicial branch are distinct from—and subordinate to—the Supreme Court of Virginia.⁸⁵ In short, the Virginia Constitution’s allowance for a mixture of powers in administrative agencies does not imply that the Supreme Court of Virginia itself could have exercised anything other than judicial power in its Final Redistricting Order.

Having addressed the arguments establishing the Legislative-Power-Absent Premise and answered the counterarguments against it in this section, the next step is to consider the scope of unconstitutionality resulting from the combination of this premise with the Legislative-Power-Required Premise established in the prior section.

C. The Scope of Unconstitutionality Under the Elections Clause

The unconstitutionality established in this Essay’s argument appears in measuring the Final Redistricting Order against the Elections Clause, which only supplies the rule and measure for congressional districts. This Essay’s argument establishing the unconstitutionality of Virginia’s congressional districts under the Elections Clause therefore extends only as far as the Elections Clause does. Because the federal Elections Clause does not govern the establishment of state legislative districts,⁸⁶ the unconstitutionality of Virginia’s congressional districts under the Elections Clause does not entail the unconstitutionality of Virginia’s state legislative districts.

Although an in-depth analysis of the constitutionality of the Commonwealth’s districts for members of its House of Delegates and Senate is beyond the scope of the argument presented here, the unconstitutionality of the congressional districts established here might be causally connected with the invalidity of the state legislative districts even if not legally entailed. To understand the nature of this potential causal connection, it is necessary to distinguish two different ways in which the state legislative districts might also be invalid.

One way the state legislative districts could also be invalid is if the 2020 Redistricting Amendment were inconsistent with the Declaration of Rights, the Division of Powers Clause, or some other aspect of the Virginia Constitution, and that inconsistency is resolved against the 2020 Redistricting Amendment. The idea of an “unconstitutional constitutional amendment” in one and the same constitution is not to be dismissed lightly.⁸⁷ But that kind of argument of unconstitutionality under the Constitution of Virginia is analytically distinct from the argument here under the Elections Clause in the Constitution of the United States.

In contrast with independent unconstitutionality under the Division of Powers Clause or some other aspect of the state constitution considered apart from the federal Elections Clause, a second way that the state legislative districts might be invalid could be causally connected with the congressional districts’ unconstitutionality under the Elections Clause. This would be the case if the Supreme Court of Virginia’s Final Redistricting Order were held to be a single “inseverable” order.⁸⁸ Whatever the merits of this argument as a matter of state law, the important feature to note here is that such an argument would rest on state law.⁸⁹ There is nothing in the federal Elections Clause or its implementing case law that requires a specific kind of state governmental power to be exercised in the establishment of state legislative districts.⁹⁰ The absence of such a state-constitutional requirement, in fact, may be the most charitable explanation to attribute to those who voted for the 2020 Redistricting Amendment; these voters on a state constitutional amendment simply may not have attended to or appreciated the ineffectiveness of its judicially powered backup mechanism under the federal Constitution.

III. What Comes Next?

The conclusion of this Essay’s syllogistic argument is that Virginia’s congressional districts are unconstitutional. This conclusion follows from the Legislative-Power-Required Premise and the Legislative-Power-Absent Premise. But what follows from this conclusion?

We can finally turn explicitly to a question that has likely been on the mind of any reader who has arrived at this point: So what? Who cares if the judicial backup mechanism in the 2020 Redistricting Amendment is unconstitutional as applied to Virginia’s congressional districts? An argument establishing the unconstitutionality of Virginia’s congressional districts is just an argument, after all. Acknowledging the correctness of its conclusion in the abstract has no effect on the law governing the Commonwealth’s congressional elections. This is true. Because this Essay’s argument is an exercise of speculative reason, nothing necessarily follows as a practical matter even if its conclusion is correct. Indeed, publishing this Essay without any attention to the potential for practical uptake of its argument might even have the perverse effect of sidelining the argument as “purely academic.”

Before turning to why anyone else should care about the unconstitutionality of Virginia’s congressional districts, let us first consider the significance of the fact that you and I care. Something significant has gone very wrong in the way that Virginia’s government is supposed to work. And that matters even if nobody who stands to gain from putting it right has yet noticed. That much can be addressed by our taking notice and bringing it to their attention. It matters even more if those who stand to lose whatever they have gained under the unconstitutional status quo would prefer the change go unnoticed. It also matters to notice that something has gone wrong with Virginia’s separation of powers as it relates to representation in Congress considered apart from any person’s or party’s “gains” and “losses.” There is a right way for states to conduct congressional redistricting under the Elections Clause—by “the Legislature thereof” or an entity exercising legislative power. It matters if Virginia’s government stops redistricting the right way and nobody cares enough to stop that progression because redistricting the correct way has proven too hard.

We should consider the “who cares?” question further by also asking “how much?” After all, “not nobody” may be an accurate answer to “who cares?”, but this is not very informative. It is noteworthy that nobody has cared enough about the unconstitutionality of Virginia’s congressional districts to sue over it (at least yet). Every element of the argument about the unconstitutionality of the Supreme Court of Virginia’s establishment of Virginia’s congressional districts under the Elections Clause has been in place through two congressional election cycles already. Indeed, the argument could have been made in earlier years, such as when the General Assembly voted on the proposed amendment for the first time, or the second time, or when Virginians voted to ratify the proposed amendment. The argument could have been made to the Supreme Court of Virginia itself after the duty to draw districts had devolved upon it but before it exercised whatever district-drawing powers it had. Yet the argument was not made. And one might reasonably ask how this history affects the conclusion reached in this Essay’s argument.

If the best explanation for inattention to the unconstitutionality of Virginia’s congressional districts is a lack of understanding, one might wonder whether Virginia’s congressional districts actually are unconstitutional. Maybe nobody has noticed this conclusion because it is wrong. If that is the case, attending to the argument will improve our understanding through the process of clarifying what is right and wrong about its premises.

Maybe instead, though, the conclusion is right as a matter of reasoning, but logic is not all there is to the life of the law. There is something to this observation. The judicial office is to administer justice under law, not to rearrange legal norms as an end in itself. If nobody advances a particular claim of legal right as owed in justice, a judge has no obligation to take note of it.

We are still left with the sheer fact that the Supreme Court of Virginia purported to establish Virginia’s current congressional districts in its Final Redistricting Order. If this Essay’s argument is right, then that part of the Order is wrong. And the best way to resolve these conflicting claims is probably for the question to make its way back to the Supreme Court of Virginia, though this time in a justiciable case with someone pressing a particular claim of legal right. In short, there needs to be a lawsuit, and it probably needs to begin or at least end up at some point in the Supreme Court of Virginia. Admittedly, a full fix will require another amendment to Virginia’s Constitution. But a successful lawsuit can help that along. “There ought to be a law” is a fine sentiment for representative government. It is incredible to imagine, though, that a band of Virginia citizens composed of separation-of-powers-since-1776 diehards will coalesce into a coalition on their own to repeal or replace the invalid judicial backup mechanism from the 2020 Redistricting Amendment. A judicial catalyst is needed.

Any Virginia lawyer assessing this Essay’s call to the courthouse should include in that assessment that a winning lawsuit catalyzing constitutional reform probably does need to run through the Supreme Court of Virginia. That court is where a lawsuit will eventually go if it begins elsewhere in the state system.⁹¹ Maybe the lawsuit should even start there.⁹² And if a justiciable lawsuit presenting this Essay’s core argument were instead filed in federal court in the first instance, the determinative issues could end up being decided by the Supreme Court of Virginia anyway—the real Supreme Court of Virginia, that is, not just the imaginary entity of an Erie guess. That is because the minor premise of this Essay’s argument turns on two questions of Virginia law. First, did the 2020 Redistricting Amendment impliedly amend or create an exception to the Declaration of Rights and the Division of Powers Clause such that the Supreme Court of Virginia was authorized to exercise legislative power in drawing the congressional districts in its Final Redistricting Order? Second, if the 2020 Redistricting Amendment did authorize the Supreme Court of Virginia to exercise delegated legislative power to create new congressional districts, did the court actually do so when it drew those districts judicially in December 2021? Given the nature and sensitivity of these questions, it is at least possible—and maybe more likely than not—that a federal court would avail itself of the opportunity presented by Virginia law to certify these questions for resolution by the Supreme Court of Virginia.⁹³

The evident eventuality of needing to approach the same institutional actor that issued the Final Redistricting Order for a decision declaring that Order’s unconstitutionality should not be a cause of consternation. Although it may seem counterintuitive at first to suggest so, the likelihood that this Essay’s argument will succeed in leading to relief on the merits may be higher in the Supreme Court of Virginia than in any other court. That court is better positioned than any other not only to identify but also to enforce the established and unchanged limits that prevent it from legislating.

There is nothing in the Supreme Court of Virginia’s Final Redistricting Order that forecloses the court from acknowledging the ineffectiveness of its Order as an exercise of legislative power creating congressional districts. This issue has neither been pressed nor passed upon previously, and the status of the Final Redistricting Order as a precedent is unclear at best.⁹⁴ Although the Supreme Court of Virginia expressly identified several sources of law in its Final Redistricting Order with which that Order complied, the Elections Clause was not on that relatively lengthy list.⁹⁵

It is admittedly awkward that the constitutional consequences of the Supreme Court of Virginia’s lack of legislative power are only being publicly identified now. But the Supreme Court of Virginia remains available to decide that the 2020 Redistricting Amendment did not deputize the court to act legislatively in carrying out the backup duty that devolved on it when the Amendment’s legislative redistricting mechanism failed. The court should be given the opportunity to say so judicially.

The shape that a justiciable lawsuit aiming at judicial enforcement of the Elections Clause with respect to the drawing of Virginia’s congressional districts may take is a product of many variables. I only address here the issues of justiciability and remedy because of the way that the end of adjudication must shape its beginning. To bring suit in federal or state court, a plaintiff must have a justiciable claim. One can infer from AIRC that an Elections Clause challenge of the sort advanced in this Essay, as contrasted with a partisan gerrymandering claim, does not present a non-justiciable political question.⁹⁶ It is not enough to have a justiciable claim in the abstract, though; a plaintiff must also possess standing.⁹⁷ This requires attention to the relief sought, which must vindicate “a direct interest, pecuniary or otherwise, in the outcome of the controversy that is separate and distinct from the interest of the public at large.”⁹⁸

With these questions of justiciability on the table, consideration of the remedy that might be ordered in a lawsuit challenging the constitutionality of Virginia’s congressional districts brings in a final plot twist. The judicial remedy might very well be a judicial order establishing the very same congressional districts. The problem identified in this Essay is not complete judicial incapacity to draw district lines but judicial incapacity to draw districts as an ersatz legislature in the first instance rather than by issuing a remedy in a real exercise of judicial power.⁹⁹ The possibility of judicially ordered readoption of the existing districts as a remedy, therefore, cannot be ruled out ex ante. Whether that would be the right remedy is to get too far ahead of things at this juncture.¹⁰⁰ The reason to raise this possibility here is only to answer the potential objection that there is no justiciable claim if the end result could be the same set of congressional districts from the same court that ordered these districts the first time. One answer to this is that two sets of districts with identical boundaries are not “the same” if one set is validly ordered while the other was not. Until the unconstitutionality of the current congressional districts is addressed, after all, their going-forward stability remains uncertain in contrast with identical districts that were validly ordered. More fundamentally, standing does not depend on a plaintiff successfully establishing that a claim will succeed on the merits, nor must a plaintiff rule out the possibility of receiving a remedy that looks a lot like the status quo.¹⁰¹

Conclusion

The conclusion of this Essay’s argument is its title: Virginia’s congressional districts are unconstitutional. This conclusion should also be the beginning of a different kind of legal document, namely a petition for mandamus or a complaint initiating a lawsuit to remedy Virginia’s unconstitutional congressional districts. There are many potential parties who could bring such an action. Doing so will provide an opportunity to counter the mistaken belief that the Supreme Court of Virginia can be conscripted to operate as a special-purpose legislature.

One saving grace attending the peculiar constitutional violation identified in this Essay is that the unconstitutional districts will be replaced in the next round of decennial redistricting. If the primary redistricting mechanism does not fail again, there will be no need to revisit the Supreme Court of Virginia’s constitutional incapacity to establish congressional districts. There is no reason to expect, however, that the failures of institutional design and political partisanship that resulted in activation of Virginia’s judicial backup mechanism this first time will lead to any better outcome the next time. If the Supreme Court of Virginia is then called upon again to create new congressional districts, this Essay’s analysis will be available to prevent a second series of congressional elections pursuant to unconstitutionally established districts.

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Virginia’s Congressional Districts Are Unconstitutional

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