Supreme Court reverses ruling that protected Virginia GOP’s legislative gerrymander

VA Redistricting, VA State House: On Wednesday, the United States Supreme Court ruled for plaintiffs who had argued that 12 of Virginia’s Republican-drawn state House of Delegates districts were unconstitutional racial gerrymanders. The high court overturned a previous district court ruling that had found Virginia did not impermissibly use race. They remanded the case back to the district court for reconsideration using a different legal standard that makes it much more likely that many of these challenged districts could ultimately be invalidated.

Republican legislators admitted to using a hard population threshold of 55 percent African American when they redrew state House districts that already had a black majority. This was done without consideration as to whether that proportion was actually necessary to elect black voters’ representatives of choice under the Voting Rights Act. In most cases, the needed proportion was likely below that number. By packing black voters into a few heavily black districts, legislators made it harder for black voters to elect their preferred candidates in neighboring seats.

However, the district court ruled that because legislators’ map didn’t flagrantly override other traditional redistricting criteria like compactness, it wasn’t immediately obvious that race “predominated” the decision-making process. Wednesday’s Supreme Court ruling faulted the district court for using the wrong legal standard, holding that plaintiffs in racial gerrymandering cases like this one did not need to prove that the state had violated traditional redistricting criteria for the use of race to be impermissible.

This distinction is important because not all gerrymanders have odd shapes, and it’s often far easier for plaintiffs to prove that a map has a racially discriminatory impact than to show that those drawing it acted with discriminatory intent. The case will now go back to the district court, where plaintiffs won’t have to meet the much higher burden of proving that legislators subordinated other criteria to race.

This lower threshold of burden could make it easier to bring racial gerrymandering challenges in the future. That could have profound consequences, since Daily Kos Elections has previously demonstrated how nearly every Southern state could have drawn another congressional district to elect black or Latino voters’ candidate preference in the 2010s round of congressional redistricting. Many Republican-drawn state legislatures could similarly face future challenges just like in Virginia.

This ruling could result in an outcome much like a 2015 Supreme Court ruling against Alabama, where they faulted the state for using a mechanical population proportion threshold without demonstrating it was necessary to elect black voters’ candidate choice. The court also remanded that decision back to the lower court, which in turn eventually struck down Alabama’s legislative districts in January as unconstitutional racial gerrymanders and ordered new maps.

There is no guarantee that a reconsidered district court ruling could come in time to affect Virginia’s state House elections this November, and a delayed ruling could potentially even result in 2018 special elections for the affected districts. However, if the court strikes down the districts in question and orders legislators to draw new ones, black voters and consequently Democrats could gain significantly.

The Republican-controlled legislature currently lacks the votes to override Democratic Gov. Terry McAuliffe’s vetoes, and this situation could persist following the 2017 elections if Democrats win the race to succeed McAuliffe. After a federal court struck down Virginia’s congressional map in an unrelated racial gerrymandering case in 2015, the two parties couldn’t reach a compromise, so the court drew its own plan for the affected districts.

Such a result could see a dramatically more favorable map for Democrats than if Republicans got another chance to draw a new gerrymander. A new court-drawn map wouldn’t automatically hand Democrats control of the state House, but it could at least put the possibility of majority on the table. That would be an enormous victory against gerrymandering considering that the current map has consistently given Republicans roughly a two-thirds majority even though they haven’t won a statewide election since 2009.

A state court on Tuesday allowed an unrelated lawsuit to proceed to trial against both Virginia’s state House and state Senate maps. Unlike the federal racial gerrymandering case, that upcoming suit challenges the maps under a state constitutional provision that mandates districts be compact. The U.S. Supreme Court also has yet to rule in another critical racial gerrymandering lawsuit in North Carolina, which could affect how the district court in Virginia’s racial gerrymandering case revisits its overturned ruling.


ND-Sen: This is Rep. Kevin Cramer, the GOP’s top choice to challenge Democratic Sen. Heidi Heitkamp, commenting on female members of Congress’ attire at Trump’s Tuesday speech:

But by the way, did you notice how poorly several of them were dressed as well? It is a syndrome. There is no question, there is a disease associated with the notion that a bunch of women would wear bad-looking white pantsuits in solidarity with Hillary Clinton to celebrate her loss. You cannot get that weird.


FL-Gov: This week, Tallahassee Mayor Andrew Gillum became the first Democrat to announce that he’ll run for this open seat in 2018. Gillum is unlikely to be the last, though, with ex-Rep. Gwen Graham and wealthy Miami Beach Mayor Philip Levine both likely to get in, and several other Democrats also flirting with bids.

Very little of Florida is in the Tallahassee media market, so Gillum likely won’t start with much statewide name recognition. If Graham also runs, she and Gillum could also be competing for the same North Florida geographic base. However, Gillum is likely to be the only serious African American candidate in the primary, which could help him stand out in a crowded race. Twenty-seven percent of the 2016 presidential primary electorate was black so if Gillum can do well with black voters, it could go a long way towards helping him win the nomination.

Gillum has been mentioned as a Democratic rising star for a while but winning a statewide race in Florida is very expensive, and we’ll see if he’ll be able to raise the money he’ll need to do well next year. No Republicans have entered the race to succeed termed-out GOP Gov. Rick Scott, though state Agriculture Commissioner Adam Putnam will likely start out as the primary frontrunner once he gets in.

ID-Gov: On Wednesday, developer Tommy Ahlquist announced that he would seek the GOP nomination to succeed retiring Republican Gov. Butch Otter. Ahlquist’s company worked on two major projects in downtown Boise and Ahlquist was a finalist for a post on the state Board of Education in 2014, so he sounds like he has some connections. Ahlquist is also wealthy and reportedly ready to spend millions of his own money.

Ahlquist will face Lt. Gov. Brad Little, who has Otter’s support, and 2014 primary candidate and ex-state Sen. Russ Fulcher in the primary. Rep. Raul Labrador, one of the most prominent bomb throwers in Congress, is also reportedly planning to run. Ahlquist’s rivals may already have some attack lines against him. In 2014, Ahlquist donated to Democratic nominee A.J. Balukoff, and Democratic state Rep. Phylis King later wrote a letter encouraging Team Blue to make Ahlquist their 2018 candidate. Ahlquist insists he’s a lifelong conservative who backed Otter and only donated to Balukoff out of friendship, but his intra-party foes may argue he’s not a real Republican.

Ahlquist is portraying himself as a businessman outsider, which hasn’t actually been a successful line in Idaho politics. According to the University of Minnesota’s Eric Ostermeier, Ahlquist would be the first Idaho governor in over 100 years who didn’t previously hold an elected office.

Idaho is a very conservative state, and Democrats haven’t won the governor’s office since Cecil Andrus was re-elected in 1990. Balukoff, who lost to Otter 54-39 during the 2014 GOP wave, says he’s considering a second bid, and other Democrats aren’t exactly clamoring to run here. Balukoff, a wealthy businessman who served as president of the Boise School Board and remains a member of the board, did get the national GOP’s attention in October of that year when the Republican Governor’s Association dropped six-figures worth of ads on him, ads that continued into the final days of the race.

Balukoff seems to have benefited from voter fatigue with Otter, which still wasn’t enough in this red state in a tough year. If Little wins the GOP nod and voters see him as an unwelcome extension of Otter’s governorship, Team Blue may have a chance to do what they couldn’t do in 2014, but Democrats will still need a lot to go right next year to flip this seat.

NM-Gov: Attorney General Hector Balderas has been considering seeking the Democratic nomination for a while, and he tells the National Journal that he “won’t wait past summer” to make a decision. Rep. Michelle Lujan Grisham has had the primary to herself since December, while businessman and 2014 candidate Alan Webber; Santa Fe Mayor Javier Gonzales; former Univision executive Jeff Apodaca; and state Sen. Joseph Cervantes have also talked about getting in.

OH-Gov: Several Democrats were waiting to see if Rep. Tim Ryan would run for governor, and his Tuesday announcement that he’d stay in the House gave them their answer. State Senate Minority Leader Joe Schiavoni quickly announced he was in, while ex-Rep. Betty Sutton says she’ll announce her plans next week. However, ex-Youngstown Mayor Jay Williams, who has a similar geographic base as Schiavoni, still says he’s considering and “will likely make a decision in March or April at the latest.”

SD-Gov: Rep. Kristi Noem, who represents all of South Dakota in the House, kicked off her bid for the GOP nomination last year, and she’ll have some primary competition. Attorney General Marty Jackley has never made it a secret that he was planning to run, and while he doesn’t seem to have publicly announced he’s in, his official Facebook and Twitter pages display a “Marty Jacky for Governor” banner. That’s good enough for us to consider him an official candidate to succeed termed-out Republican Gov. Dennis Daugaard.

A third Republican may also get in, with Lt. Gov. Matt Michels saying he’ll decide after the legislative session ends in late March. Lieutenant governors often don’t have much name recognition with voters, and it’s unclear if Michels will have the money and connections he’d need to take on heavy hitters like Noem and Jackley. The local station KELO also says there are “rumblings as to possible candidates for governor” like Sen. Mike Rounds, who served as governor from 2003 to 2011, but we haven’t seen any sign that Rounds is interested in seeking out his old job.

The last time Democrats won the governorship was 1974, when incumbent Richard Kneip was re-elected. Democrats have a very small bench here, and it got even smaller last year when Sioux Falls Mayor Mike Huether left the party to become an independent. KELO calls state Senate Minority Leader Billie Sutton and ex-U.S. Attorney Brendan Johnson, the son of ex-Sen. Tim Johnson, rumored candidates. However, Johnson said back in November that he “won’t be running for anything” in 2018, and there’s no indication he’s changed his mind. Huether has flirted with running for governor as an independent, which could make it even tougher for Team Blue to win.


GA-06: Well, we knew this was coming: You don’t raise seven figures for a congressional special election and have Republicans not take notice. But it’s safe to say we had no idea the GOP’s response would look this utterly bizarre. The Congressional Leadership Fund, a Republican super PAC closely tied to House Speaker Paul Ryan, just announced plans to spend $1.1 million on a minute-long TV attacking Democrat Jon Ossoff for the sin of—and we’re not joking here—dressing up as Han Solo in college.

The spot mainly features a few clips of Ossoff goofing around with some fellow Star Wars enthusiasts—in other words, some very normal-looking fun and games from a decade ago. It’s obviously designed to make voters think the 30-year-old Ossoff is still just an unready college kid, but for all we know, it’ll make him look like a regular human being who, like everyone else, loves Han Solo because he’s just the coolest character ever to walk on to a Hollywood set. Let’s just put it this way, kid: We’ve flown from one side of this galaxy to the other, and we’ve seen a lot of strange stuff, but we’ve never seen anything quite like this.

IA-03: On Wednesday, wealthy investor Mike Sherzan announced that he would seek the Democratic nomination to face GOP Rep. David Young in this Des Moines-area seat. This is the third cycle in a row that Sherzan has run. In 2013, Sherzan dropped out after a few months citing health issues, while he lost the 2016 primary to veteran Jim Mowrer 50-36.

At least two other Democrats, Office of Consumer Advocate attorney Anna Ryan and longtime political consultant Pete D’Alessandro, are talking about getting in, and one of them might try attacking Sherzan the same way Mowrer did last year. Sherzan seemed to be well positioned through most of the primary, with even a Mowrer poll from two weeks before the contest giving Mowrer just a 36-35 lead. However, Mowrer ran a commercial late arguing that “banker Mike Sherzan was fighting to weaken President Obama’s Wall Street reform laws.” It’s unclear how much damage Mowrer’s message really did in the homestretch, but Sherzan should probably anticipate a similar line-of-attack this time.

In 2016, Sherzan spent about $800,000 of his own money on the primary and raised very little from donors. This time, Sherzan says he’s getting in early to give him time to fundraise, though he didn’t rule out doing more self-funding. Whoever makes it to the general won’t have an easy time against Young, who beat Mowrer 53-40 as this seat swung from 51-47 Obama to 49-45 Trump. Still, this district is competitive enough that it very well could flip in a good year for Team Blue.

MT-AL: On Wednesday, GOP Rep. Ryan Zinke was confirmed by the Senate to head the Department of the Interior. Zinke resigned that day, and Democratic Gov. Steve Bullock scheduled the special election to succeed him for May 25, a Thursday. Montana backed Trump 56-35 and the GOP is favored to hold this seat, which contains the entire state. However, Bullock pulled off a 50-46 win against Republican Greg Gianforte last year and Sen. Jon Tester (whom Zinke may have challenged next year if he hadn’t been picked for the cabinet) won re-election 49-45 as Romney was carrying the state 55-42, so Montana is still open to electing Democrats.

Under Montana law, the parties will choose their nominees at conventions rather than through a primary. Democrats have announced that their convention will be on Sunday, while the GOP says they’re waiting to hear from the secretary of state to find out the deadline for submitting their nominee’s name to the state. On the Democratic side, state Rep. and 2014 Senate nominee Amanda Curtis, state Rep. Kelly McCarthy, and musician Rob Quist, who has the support of ex-Gov. Brian Schweitzer, are competing on Sunday. Several Republicans are also competing, including Gianforte. Gianforte, who says he’s raised $825,000 already, is arguing he already has enough support to win the GOP convention, but we’ll find out soon.

NJ-11: Democratic Assemblyman John McKeon recently refused to rule out a bid against longtime GOP Rep. Rodney Frelinghuysen in this North Jersey seat, and he now tells Politico that he’s spoken to the DCCC. However, McKeon also says he’s focusing on his re-election campaign this year. There’s nothing stopping McKeon from running for Congress after winning another term in the Assembly, but it would leave him with less time to fundraise for a House race in the ultra-expensive New York City media market. Frelinghuysen is the chair of the powerful House Appropriations Committee so he’ll have absolutely no trouble bringing in cash, and the congressman is personally wealthy to boot. This ancestrally red seat, which includes Morristown, swung from 52-47 Romney to 49-48 Trump.

TX-23, TX-16, TX-20: Republican Rep. Will Hurd pulled off a narrow 48-47 win last year in his rematch with ex-Rep. Pete Gallego as Clinton was carrying his seat 50-46. Democrats will want to target this district, which stretches from the outskirts of El Paso east all the way to San Antonio, but it’s unclear whom they’ll field. Two Texas Democrats, state Rep. César Blanco and ex-state Rep. Trey Martinez Fischer, both tell the National Journal that they’re interested. However, each man says they’ve also been encouraged to run for a neighboring and safely blue seat if the incumbent congressman leaves to run for the Senate.

Over in the El Paso-based 16th District, Rep. Beto O’Rourke is flirting with a campaign against Sen. Ted Cruz, and Blanco says he’s been contacted about running there if O’Rourke leaves. In the San Antonio-area 20th, Rep. Joaquin Castro is also considering a Senate bid, and Martinez Fischer says he’s been encouraged to seek that seat if Castro tries for a promotion. Castro says he’ll likely decide in “seven or eight more weeks” and O’Rourke insists he might run for the Senate even if he needs to face Castro in a primary, so it’s possible that Blanco and Martinez Fischer will both run for Congress—just not against Hurd.

During his time in the state House, Martinez Fischer used the chamber’s rules to find ways to block the GOP majority. However, as Trowaman reminds us, Martinez Fischer memorably called the GOP “Gringos y Otros Pendejos” in a 2014 speech, a term that we’ll just say probably won’t play incredibly well in a swing seat where Anglo-Americans make up a large portion of the electorate.

Martinez Fischer’s last two elections also didn’t go particularly well. In 2015, Martinez Fischer lost a 2015 state Senate special election to fellow Democratic state Rep. Jose Menendez 59-41 in a big upset after Menendez relied heavily on GOP voters to win and a conservative group spent heavily on ads portraying Martinez Fischer as too close to trial lawyers. The next year, Martinez Fischer challenged Menendez in the Democratic primary and also lost 59-41.

Blanco, a Navy veteran who served as chief of staff for several Texas Democratic congressmen, including ex-23rd District Rep. Gallego, is considerably more low-key. If Blanco runs for Congress, his D.C. connections could help him raise money. However, almost all of Blanco’s seat is located in O’Rourke’s 16th Congressional District. If O’Rourke runs for the Senate, as he says he’s likely to do, Blanco may decide it makes more sense to run in the primary for the safely blue El Paso district where he has a base than run against Hurd in a swing seat.


Special Elections: Connecticut held three special elections for the state legislature on Tuesday night, and as expected, no seats changed hands. But the results were interesting nonetheless. Here’s a quick summary:

Connecticut SD-02: This was an easy hold for the Democrats: State Rep. Douglas McCrory defeated Republican Michael McDonald 72-25.

Connecticut SD-32: Republicans kept this seat: State Rep. Eric Berthel defeated Democrat Greg Cava by a 54-44 margin.

Connecticut HD-115: Democrats held on to this one, with Dorinda Borer defeating Republican Edward Granfield by a 61-39 margin.

The 32nd Senate District race was the most closely contested of the three, but it should never have even been in question for Republicans. Donald Trump carried the seat by a 59-37 margin, meaning that Cava, the Democrat, ran 12 points ahead of Hillary Clinton’s performance. Meanwhile, in the 115th House District, Borer also outpaced the top of the ticket by 4 points. As we’ve noted repeatedly, Democrats almost always run behind presidential performance in special elections, but since Trump’s victory last fall, they’ve now exceeded the presidential margin in seven of nine Democrat-vs.-Republican special elections nationwide.


The Daily Kos Elections Morning Digest is compiled by David Nir, Jeff Singer, and Stephen Wolf, with additional contributions from David Jarman, Steve Singiser, Daniel Donner, and James Lambert.

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