The Supreme Court strikes a small but significant blow against gerrymandering

Virginia may have free and fair elections for the first time in nearly a decade.

Justice Ruth Bader Ginsburg (Photo by JIM WATSON / AFP)
Justice Ruth Bader Ginsburg (Photo by JIM WATSON / AFP)

For the last several election cycles, the Virginia House of Delegates was so egregiously gerrymandered that the Commonwealth of Virginia ceased to be a democracy. In 2017, Democratic candidates for the state house won the statewide popular vote by over nine percentage points. Yet Republicans held on to a 51-49 majority in the house.

That’s likely to change, thanks in part to the Supreme Court’s decision in Virginia House of Delegates v. Bethune-Hill, which was handed down Monday. Justice Ruth Bader Ginsburg’s decision for a majority of the court is not a doctrinal earthquake. And it says nothing about the still-pending question of whether states may draw gerrymanders to benefit one party or the other.

Nevertheless, the court’s decision in Bethune-Hill marks the end of one of the most rigid gerrymanders in the country. And it gives Democrats a fighting chance at winning the state house in this November’s election.

The decision was 5-4 but broke down on unusual lines, with Ginsburg being joined by Justices Clarence Thomas, Sonia Sotomayor, and Elena Kagan, plus Trump judge Neil Gorsuch. Justice Alito wrote the dissent for the remaining members of the court, which included Clinton-appointee Justice Stephen Breyer.


The narrow question decided in Bethune-Hill is whether the Republican-controlled House of Delegates could appeal a lower court decision striking down 11 of Virginia’s legislative districts as unconstitutional racial gerrymanders, when the state’s Democratic attorney general declined to bring such an appeal. Justice Ginsburg’s opinion concludes that the House cannot.

“Virginia would rather stop than fight on,” she wrote, adding that “one House of its bicameral legislature cannot alone continue the litigation against the will of its partners in the legislative process.”

Among other things, Ginsburg relies on a state statute providing that, with few exceptions, “all legal service in civil matters for the Commonwealth, the Governor, and every state department, institution, division, commission, board, bureau, agency, entity, official, court, or judge…shall be rendered and performed by the Attorney General.” It is ultimately the attorney general’s decision whether the state shall bring an appeal or allow lower court decision to stand.

The newly drawn maps are far more favorable to Democrats than the ones struck down in this case. And, as Democrats already control the governor’s mansion in Virginia, the decision in Bethune-Hill means that they could soon control the entire government in this increasingly blue state.

Nevertheless, Bethune-Hill is a narrow decision. And it will do little to deter future gerrymanders. Yes, Democrats will now get to run in one election that will be fairer than the ones that immediately proceeded it, but Republicans still got to run under gerrymandered maps for several election cycles. Bethune-Hill does nothing to undo those past elections.


In other words, unless the Supreme Court comes up with a faster way to process gerrymandering cases, state lawmakers will continue to have every incentive to rig elections for their party.