Republicans Don’t Need to Win Elections Anymore. They Just Need Their Judges.

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The redistricting news for Democrats has gone from bad to worse.

A week after the US Supreme Court effectively destroyed the Voting Rights Act, opening the door to Southern states invalidating majority-Black districts across the South, the Virginia Supreme Court on Friday overturned a redistricting referendum approved by voters last month that was expected to net Democrats four new US House seats.

These two decisions by conservative-dominated courts now put Democrats at a significant disadvantage in the gerrymandering arms race launched by Donald Trump last summer when he ordered Texas to gerrymander five new Republican seats.

With the passage of the Virginia map, Democrats had mostly succeeded in reaching a draw with Republicans in the redistricting wars. But with the Virginia map overturned and Southern states—including Tennessee, Louisiana, Alabama, and South Carolina—rushing to pass new maps before the midterms, Democrats could face a four to five-seat disadvantage heading into November, according to Amy Walter of the Cook Political Report. While that is not insurmountable in a wave election—and Democrats could still pick up two seats in Virginia under the existing map—it gives Democrats little margin for error in the effort to take back the House.

In the 4-3 decision, the Virginia Supreme Court ruled that the April referendum violated the state Constitution because amendments must be passed twice by the legislature, with an election in between. The first time they passed it was after early voting started, so it doesn’t count. “This constitutional violation incurably taints the resulting referendum vote,” the court wrote, “and nullifies its legal efficacy.”

In a dissenting opinion, Chief Justice Cleo Powell wrote that the majority had “broadened the meaning of the word ‘election,’ as used in the Virginia Constitution, to include the early voting period. This is in direct conflict with how both Virginia and federal law define an election.”

The decision effectively tosses out three million votes cast in the referendum on a legal technicality. It’s worth noting that voters in red states have not been able to weigh in on any of the mid-decade gerrymanders passed by their legislatures. And while those states have different laws than Virginia, voters in Florida and Ohio did pass prohibitions on gerrymandering that their legislatures flagrantly ignored—but conservative-dominated state supreme courts in those states are unlikely to void the new maps.

It’s impossible to ignore the national context: It appears that Democrats are bound by one set of rules while Republicans play by another, and Republican-appointed judges have repeatedly put their collective thumb on the scale of elections to make sure their party prevails.