If you’re a Democrat, ask yourself a simple question: When was the last time something got better after Brett Kavanaugh got his hands on it?
Unfortunately, Jay Jones, Virginia’s Democratic attorney general, doesn’t seem to have pondered this question before asking the US Supreme Court to get involved in his state. fight over robbery. If the Court buys one of Jones’ arguments, it will leave Democrats in a 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 constitution — and approved new congressional maps that were intended to give Democrats four additional seats in the US House of Representatives. The map was also intended to balance the Republican establishment in states such as Texas.
Last week, however, the Virginia Supreme Court issued a a surprising decision invalidating the referendumand restore the original maps of the state legislature. The decision of the supreme court of the state in Scott v. McDougle it was wrong. It was based on the claim that the voters of Virginia were denied the right to weigh whether to amend their constitution. This claim is absurd because, again, 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 being involved in this case. Although federal judges have the final say on all questions of federal law, state supreme courts have the final say how to interpret the law of their country and the constitution of their country.
This means that, if the Virginia Supreme Court misreads the Virginia constitution, then Virginia voters are stuck with that interpretation. But it also means that if the Wisconsin Supreme Court, which will be soon to have Democratic bossesrejects the Republican attempt to overturn the election, then the US Supreme Court cannot interfere with that decision either.
of Jones briefly to the judges in Scott case asks federal judges to redress this imbalance. Among other things, Jones relies on a rejected legal theory known as “the parliamentary doctrine of independent government” (“ISLD”) argued that the US Supreme Court should overrule Virginia’s highest court on a question about Virginia’s own election law.
Jones, in other words, wants to give the Republican Supreme Court of the United States the final word on state election law disputes. No way that ends well for the Democrats.
Jones’ bad legal arguments
of Jones short makes two separate attacks on the state supreme court’s decision, one that is incorrect but minor, and the other that is downright dangerous.
The sub-argument rests on the fact that the decision of the supreme court of the state in Scott cites the decision of the United States Supreme Court, Foster v. Love (1997), justifying his conclusions. The brief claims that the state supreme court misread it Guardianand so the US Supreme Court can get involved because a state court misread a federal case.
But this argument is too big. Although it is true that the state supreme court opinion includes several quotations Guardianthe court also relied on state law sources for its opinion, including historical documents, dictionaries, scholarly sources, and false conclusions by state judges that Virginia voters were somehow disenfranchised.
As Jones acknowledges in his brief to the federal judges, the U.S. Supreme Court can challenge a state supreme court’s decision when that decision is “overlap with federal law.” But when a state court merely cites a federal court decision, even if it misreads the federal decision, that is not enough to convert a state case into a federal case. State courts frequently cite cases from other states or federal courts because they find those decisions persuasive, and the limited citations of US Supreme Court decisions do not give federal judges the right to overrule a state supreme court decision.
Jones’s worst argument, meanwhile, rests on ISLD.
The the parliamentary doctrine of independent government it is based on two articles of the US Constitution which state that the rules governing federal elections should be decided by the “legislature” of each state. For more than a century, the United States Supreme Court has understood the term “congress,” when used in this context, to refer to anything. the body has the power to make laws within the country – which may include the people themselves if the state constitution allows for ballot initiatives or referendums.
ISLD, however, contends that the word “parliament” must be read to refer only to the legislative branch of the state. Thus, under the strongest version of ISLD, a state governor cannot veto an election-related bill (because the governor is part of the executive branch and not the legislative branch), the state supreme court cannot interpret a state election law (because the court is not a “legislature”), and the state cannot change its election laws through a plebiscite or plebiscite.
Although the US Supreme Court has rejected this extreme form of ISLD many times, in Moore v. Harper (2023), the Court toyed with the weakest form of the doctrine that would effectively allow federal courts to overrule a state court’s interpretation of its own election law. “State courts,” the United States Supreme Court said Moore“should not overstep the bounds of ordinary judicial review to intrude unconstitutionally on a duty specifically assigned to state legislatures.”
Moore it did not define what it meant to “exceed the limits of ordinary judicial review,” and the United States Supreme Court has never ruled that a state court did so. If it did, however, that would be a major transfer of power from state supreme courts (which are sometimes controlled by Democrats) to the US Supreme Court (which has a Republican majority for the foreseeable future).
By asking Moore in his brief to the federal judges, in other words, Jones asks the Republican majority on the U.S. Supreme Court to take full control of all disputes related to federal elections, regardless of whether the disputes involve issues of state or federal law. It’s hard to imagine a more reckless request from a Democratic elected official.
The US Supreme Court is the reason gerrymander abuse is out of control
Until recently, American states usually only renew their maps every 10 years. (The Constitution requires states to redraw their legal maps after each census.) And before this Court’s major decisions to reimpose restrictions, higher-ups, like the 10-1 Democratic map offered in Scott or 30-8 Republican map issued recently by Texas Republicans, were less common than they are today.
What did change were two Supreme Court decisions, both co-opted by the Court’s Republicans alone, that eliminated virtually all federal statutory protections against harassment. Rucho v. Common cause (2019) held that federal courts cannot do anything to stop sectarian violence. And Louisiana vs. Callais (2026) struck down a 1982 amendment to the federal Voting Rights Act that prevented many states from drawing congressional maps that would elect only white Republicans.
But now Virginia Democrats are asking the GOP-led Supreme Court to right the wrongs of the state’s highest court in the bankruptcy case. That’s like hiring Osama bin Laden to rebuild the World Trade Center.
No one has done more to overreach, or give Republicans an unfair advantage in reimposing congressional restrictions, than the six Republican Supreme Court justices. It is ironic that a Democratic elected official now wants to give these six Republicans more power over federal elections.
