Dem
47
GOP
53
Presumably, anyone reading this is aware by now that the Democratic effort to gerrymander their way to 4-5 more seats in Virginia has failed, at least for now, because the new map was struck down by the state Supreme Court. As we have noted a couple of times, the Democrats in the Virginia state legislature have asked the state Supreme Court to stay its ruling, and are also going to file an appeal with the U.S. Supreme Court.
These efforts are going to fail, maybe sooner, maybe later, but... probably sooner. So, what can/will the Democrats do once the inevitable comes to pass? We've seen a lot of talk on this subject, speaking to four different general plans of action—some of them shorter-term, some of them longer-term. Here's a rundown of the four plans (which are not in conflict with each other, such that any or all could become part of the "battle plan"), along with our thoughts as to how plausible they are:
Plan 1, Virginia Hardball: If the Democrats want to try to save those four seats in Virginia for the 2026 election, there is an option, but it's such dirty pool that it would make even Sen. Mitch McConnell (R-KY) blush. Law professor Quinn Yeargain of Michigan State University has written a piece pointing out that the Virginia legislature sets the retirement age for state Supreme Court justices, and that once a justice reaches that age, they have 20 days and then they're out of a job. So, Yeargain proposes dropping the age from the current 73 down to 54. This would force the entire Supreme Court to retire. Then their replacements would be chosen by the Democratic-controlled legislature, and thereafter the Democrats could ask the new state Supreme Court to quickly reconsider the case.
Will It Happen?: We do not believe, for one minute, that the blue team is willing to play hardball that is this hard. And just in case there are any doubts, Gov. Abigail Spanberger (D-VA) has already pooh-poohed the plan. However, Associate Justice D. Arthur Kelsey, who was named to the court by a Republican-controlled legislature, and who wrote the decision in the case that struck down the new maps, will reach the end of his term on January 31, 2027. He won't be required to retire, but he won't be reappointed, either. No, you can expect the Virginia Democrats to replace him with a more blue-minded jurist, and THEN to ask the Court to reconsider the case. That won't help the Democrats for 2026, but it would help them in 2028, if it works out in their favor.
Plan 2, Gerrymandering Hardball: California managed to re-gerrymander this year, largely because Gov. Gavin Newsom (D-CA) moved heaven and earth. The other Democratic states were caught a little flat-footed, partly because the Gerrymandering Wars started fairly late on the calendar, partly because some states have passed laws that make it really hard to roll back anti-gerrymandering protections and then impose gerrymandered maps.
There is little question, at this point, that the blue states where the clock ran out—say, New York or Maryland—will climb on board the Elbridge Gerry express by 2028. The considerably tougher question is whether those blue states will be willing to (somewhat maliciously) "honor" the Supreme Court's recent decision in Louisiana v. Callais, and to break up majority-minority districts. The effect of this would be to make it easier to gerrymander away Republican-held seats (which Democrats would like very much), but would make it harder for minority voters to get representation in Congress (which Democrats don't like at all).
Will It Happen?: If you asked us to guess, without benefit of any additional information, we would think that this would be a bridge too far for both Democratic voters and leaders. But it looks like we might be wrong. House Minority Leader Hakeem Jeffries (D-NY), who is of course Black, has made clear many times that he wants all options to be on the table. The phrase "crush their souls" has apparently been used more than once. And yesterday, Rep. Greg Meeks (D-NY), who is also Black and is a close Jeffries ally, endorsed breaking up majority-minority districts, declaring: "Trump changed the rules. I don't like those rules, but we're going to do what we have to do to win." And a new poll from Politico/Public First says that among Democratic voters who have an opinion, by a margin of about 3-to-2, they are willing to break up majority-minority districts (45% support it, 32% oppose it, 23% don't have an opinion).
Another thing the Democrats could do is quietly make a deal with Black leaders both in and out of Congress. The deal would be to actively recruit attractive young Black candidates with degrees from Ivy League law schools and get them to run in wealthy districts packed with college-educated white voters. These voters will have no problem with such candidates and this will supply the House with Black members, even if they are not representing majority-minority districts. The ideal candidates are ones who grew up poor, so they know what that is like.
We will note one more thing: Minority Americans, and in particular Black Americans, have kind of learned to play the long game. The Civil Rights Movement was very much about the long game. Heck, the careful reader will notice that the Fifteenth Amendment was adopted 156 years ago, and non-white Americans are still (largely patiently) waiting for their voting rights to be respected on par with white Americans. It is at least plausible to us that there are many minority Democrats out there who think as Meeks does, namely "We're going to have to agree to lose this particular battle if we want to win the war."
Plan 3, SCOTUS Hardball: This one has been talked about since, oh, 1937 (if not before that). So, don't go running out and placing bets that it will happen. That said, the Supreme Court is less respected than it has been at any time in the last 100+ years, and it's clearly become hyper-politicized. It is also the root cause of most of the problems in the American electoral system, since the Roberts Court is the #1 defender of gerrymandering and the #1 opponent of the Voting Rights Act.
Will It Happen?: This week, Kamala Harris went viral for a speech she gave in which she said the time has come for Court packing and other reforms. She is pretty much as establishment as it gets, and so if she's climbed on board, you know that the idea of taking a sledgehammer to the Court has gone mainstream, at least among Democrats. And recall there are many possible options: Adding justices, setting it up so nominations happen once every 2 years and NOT "whenever there's a vacancy," stripping SCOTUS of some of its responsibilities and handing them to a National Court of Appeals or some other such newly created organ, imposing a mandatory retirement age, etc.
We don't think all of these changes will happen in the next 5-10 years, but we do think some of them will. Democrats are hopping mad, and the only things standing in their way are: (1) regaining the trifecta and (2) the filibuster. The trifecta will certainly happen, very possibly in 2028. As to the filibuster, it clearly runs contrary to the intent of the Constitution (majority rule, not minority rule) and it clearly benefits the Republicans more than it benefits the Democrats. If the Democrats do control the Senate in 2029, their caucus likely won't contain filibuster fetishists like Joe Manchin and Kyrsten Sinema. Alternatively, the Democrats could tell the Republicans: "If you work with us on a bipartisan effort to fix the Supreme Court, we won't touch the filibuster. If you won't work with us, then we'll kill the filibuster and overhaul SCOTUS without your input."
One thing to keep in mind here is that changes that require a constitutional amendment will be extremely difficult, so the focus has to be on things Congress can do. A key one is stripping the Supreme Court of appellate jurisdiction on all election cases (since the states run elections). A bonus would be to make it a federal felony for a justice to vote on a case Congress has banned it from taking. Another item is to pass a "Judicial Review Act," which would "update" Marbury v. Madison and give it an actual legal basis by stating that the Supreme Court may declare a law to be unconstitutional only if the decision is unanimous. We discussed Court reform in December. Take a look to refresh your memory.
Plan 4, Reinvent the Party: This is the real long play. It's also the option favored by folks like the former Republicans who run the Bulwark. That site's Lauren Egan just wrote a piece headlined "A Dem Survival Plan for the Southern Apocalypse," in which she said that Democrats need to drop the litmus tests and support candidates who can win, even if they are "wrong" on abortion rights or gun control or whatever. What this would mean, to a greater or lesser extent, would be a return to the Democratic Party of the 1950s, when there was a conservative wing and a liberal wing, and the blue team usually had large majorities in both chambers of Congress.
Will It Happen?: We, and in particular (Z), don't love the argument that Democrats are unwilling to support candidates who "fit" their constituencies. This is a party that finds room for, among others, Gov. Andy Beshear (D-KY), former Louisiana governor John Bel Edwards, Reps. Jared Golden (D-ME) and Marie Gluesenkamp Perez (D-WA), and now would-be U.S. Senator James Talarico.
That said, we are reminded of the old Wayne Gretzky quote about how you miss 100% of shots you don't take. And we do agree with Egan's point that the Democrats have largely focused on the majority-minority districts in the South, while ignoring pretty much everything else. Howard Dean was talking about a 50-state strategy 20 years ago, and the (temporary?) death of the VRA means that might have moved from "it would be nice" to "it will be necessary."
It is none too easy to build a truly national organization, one that is legitimately trying in every single state, House district, and state legislative district. Barack Obama is the most gifted politician of the last 20 years, and it was so far beyond even him that he didn't even try. It does not help that those kinds of investments often don't pay dividends for years (or more). While a 50-state strategy is probably pointless, a 30-state strategy might work. For example, West Virginia used to be Democratic and might be winnable on economic policy, say building the world's largest solar panel factory there. Farmers in the Midwest might be winnable by doing things like breaking up Big Ag companies and making life better for regular farmers. Manufacturing in Ohio and Indiana could be revived by very carefully devised sky-high tariffs on the products they make, and so on.
In short, of the four items on this list, this seems the heaviest lift and the least likely to come to pass. If it IS going to happen, then the first step is to get rid of Ken Martin as chair of the DNC, and to install someone who is rather more dynamic.
The contours of this year's midterms are pretty well set—we know what the maps are, or what they are likely to be. But the next couple of years are going to be very interesting, indeed. Meanwhile, we expect to do one more item in this mini-series, on exactly how devastating the Democrats' loss in the Gerrymandering Wars really is. (Z)