Virginia Democrats' risky Supreme Court bid to overturn gerrymandering ruling sparks controversy

If you’re a Democrat, ask yourself a simple question: When was the last time something got better after Brett Kavanaugh put his hands on it?

Unfortunately, Jay Jones, Virginia’s Democratic attorney general, does not appear to have considered this question before he asked the US Supreme Court to get involved in his state’s fight over gerrymandering. If the Court actually buys one of Jones’s arguments, they will leave Democrats in a much worse position than if Jones had never filed this case in the first place.

Earlier this year, Virginia voters approved a referendum to amend their state’s constitution and approve new congressional maps intended to give Democrats four additional seats in the US House of Representatives. The map was also designed to counterbalance Republican gerrymanders in states like Texas.

Last week, however, the Virginia Supreme Court handed down a surprising decision invalidating that referendum and reinstating the state’s previous congressional maps in Scott v. McDougle.

Why the Virginia Supreme Court’s decision matters

The state supreme court’s decision was wrong. It rested on a claim that Virginia voters were denied the right to weigh in on whether to amend their constitution. This claim is absurd because the redistricting amendment was submitted to the state’s voters and approved by them in a referendum.

But the fact that the state supreme court’s decision was wrong does not mean that the US Supreme Court has any business getting involved in this case. While the federal justices have the final word on all questions of federal law, state supreme courts have the final say on how to interpret their own state’s law and constitution.

This means that if the Virginia Supreme Court misreads Virginia’s constitution, then Virginia voters are stuck with that interpretation. But it also means that if the Wisconsin Supreme Court, which will soon have a Democratic supermajority, rejects a Republican attempt to overturn an election, then the US Supreme Court cannot interfere with that decision either.

Jay Jones’ dangerous legal argument

Jones’ brief to the justices in the Scott case asks the federal justices to upend this balance. Among other things, Jones relies on a discredited legal theory known as the “independent state legislature doctrine” (ISLD) to argue that the US Supreme Court should overrule Virginia’s highest court on a question about Virginia’s own election law.

In other words, Jones wants to give a Republican US Supreme Court the final word on state election law disputes. There is simply no way that ends well for Democrats.

Jones’ flawed legal arguments

Jones’ brief makes two separate attacks on the state supreme court’s decision. One is wrong but trivial, and the other is outright dangerous.

The trivial argument relies on the fact that the state supreme court’s decision in Scott cites a US Supreme Court decision, Foster v. Love (1997), to justify its conclusion. The brief claims that the state supreme court misread Foster, and thus