Brad Kutner: Will Judges Force State Delegates to Run for Reelection This Year?
Happy Sine Die! We're talking about some bills that passed this Session that you may have missed.
IN THE NEWS: Local government advisory boards and commissions lost the ability to meet virtually when the State of Emergency ended. Now, a new law from Del. Bennett-Parker (D-Alexandria) will restore the ability for un-elected local governmental bodies to meet virtually.
Two teenagers who created the VA Bipartisan Civic Engagement Coalition worked with lawmakers to craft a bill establishing a new advisory board of students to help the Board of Education make policies.
Students with lunch debt will finally be allowed to participate in extracurricular activities thanks to a new bill from Del. Danica Roem (D-Prince William). She's been working for years to stop schools from punishing children for being poor.
GUEST: Brad Kutner, reporter for the National Law Journal, discusses a federal lawsuit that could upend Virginia politics and force a special election for the House of Delegates this year. More at http://linktr.ee/JacklegMedia
Michael Pope
I'm Michael Pope.
Thomas Bowman
I'm Tom Bowman.
Michael Pope
And this is Pod Virginia, the podcast that takes you inside Virginia politics.
Thomas Bowman
Later in the show, we're gonna hear from Brad Kutner. He's a reporter for National Law Journal. Tell us about this federal lawsuit that could upend Virginia politics and force in a special election in the House of Delegates this year. We spent a lot of time discussing whether or not the plaintiff, Democratic activist Paul Goldman, has standing, because that's what a three judge panel is trying to determine right now. Michael, what do you think about that interview?
Michael Pope
It's actually a fascinating discussion about whether or not the election that happened last year was unconstitutional. You know, Thomas, Virginia's Constitution actually says, the year after a census, lawmakers, you know, the House members, must be elected in newly created districts. And so 2020 was the census, which means that, according to our Constitution, in 2021, an election must have happened with new districts. And guess what, that did not happen. So the election that happened last year is pretty plainly unconstitutional. So what's the remedy for that? Well, Paul Goldman, this Democratic activist, says that he'd like to see a new election, and it should happen this year. And so he's trying to get the courts to force that as the remedy. The problem is, does he have standing to actually bring the case before the court and force the court to take action? In other words, is he harmed by the unconstitutional election? Does he have some sort of stake in the unconstitutional election? And we don't know, we don't know the answer to that.
Thomas Bowman
Important context here that, while it says you have to hold your reelection the year after the census, the 2020 census was significantly delayed, and wasn't released until April 26, 2021. So there's a practical problem here, in that there wasn't enough time to be able to draw the new maps with the new census data. So they had to kind of do the best they could, given the information they had, and then wait until the new census numbers came out. And then, kind of, reverse engineer the lines that they had drawn, because this is an incredibly long, drawn out, process, requiring public input now, and commission agreement. So and, of course, famously, they couldn't agree. So there's a clock element to this in that, you know, nothing went the way it was supposed to go period.
Michael Pope
Yeah. All right. Well, let's get to the news. When the previous governor, Ralph Northam, declared a state of emergency for the pandemic, local governments had the ability to hold virtual meetings, but now that state of emergency is over, and your local City Council cannot meet virtually, and neither can any of the boards or commissions. Delegate Elizabeth Bennett Parker is a freshman Democrat from Alexandria who wants to change that.
Elizabeth Bennett Parker
Over the course of the pandemic, when we had virtual meetings, I think we saw a dramatic increase in participation. And I know, having worked on this for, basically, almost two years now in different iterations of it, that it's really important to a lot of different folks, seniors, for example, the Northern Virginia Aging Network, this is one of their top six legislative priorities this year. It's important to women and other people who can't always be in person all the time.
Michael Pope
Now, people who want to participate in local boards and commissions, like for example, the library board, or the local emergency planning committee, they would be able to take advantage of a bill that Bennett Parker introduced allowing advisory bodies to meet virtually. Now, Elizabeth Bennett Parker's original bill allowed for all the local government bodies to meet virtually, the city councils, and the school boards. But the Senate decided to scale it back. So it applies only to advisory bodies, and not like decision making bodies. Senator Jennifer Boysko is a Democrat from Herndon.
Jennifer Boysko
This does not apply to town councils. This does not apply to school boards. This is for boards and commissions that are not elected bodies. And I can tell you from my locality, they've been begging for this, they need to have that flexibility. It's hard to get people to agree to serve on some of these boards and commissions and advisory councils.
Michael Pope
Now, Thomas, I have to say, I am, personally, a member of the Alexandria Local Emergency Planning Committee, and we have not had any meetings since the pandemic started, which is kind of ironic for the local emergency planning committee. Hopefully, if the Governor ends up signing this bill, our committee will be able to have a virtual meeting. But until that time, you know, this, we live in this world where, you know, we got a taste of virtual government during the pandemic. Now, that's sort of over with because the emergency rules no longer apply. But this is a direction that, you know, Virginia governments, local governments, state governments, has been moving in. There are a lot of people who are unhappy with this, though, a lot of Republicans, especially, don't like the whole virtual meetings. They have- they look skeptically at Zoom. And, and even some Democrats, like Chap Peterson was the one who said, you know, like, let's not have the city council's be able to meet virtually, let's not have the school board, or the zoning- the board of zoning appeals, or any of these sort of bodies that make like binding decisions, like none of those people can meet virtually, just the advisory committees. What do you think about that?
Thomas Bowman
This is, one, a good bill from Elizabeth Bennett Parker, it's well past time to modernize state government and local government. And so right before the session started, Virginia's legislative systems got disrupted by a ransomware attack. So Virginia really needs to spend a lot of time improving its digital capabilities, its cybersecurity, and how it interacts in the digital age. Philosophically, I'm somebody who believes that more participation is better. And we should go where people are, and people are in their house, right? So let them click on a link if they want to participate to do so on a computer, and they can watch, observe, sign up to speak. We don't have to reinvent the wheel, because Zoom already exists for enterprise solutions. What I sense the disagreement is here, it's not so much partisan, it's generational. Older people aren't as comfortable with technology, and being forced to learn new technology, and adapt to new technology, where as younger people, especially Gen Z, was born into high speed internet, which nobody else was. In fact, I- the last generation that remembers pre internet, I and other Millennials stand with each foot in the door of a different era. And we've got to move forward because the last time Virginia government was modernized was, I believe, in the 1970's.
Michael Pope
You know, one of the best developments here with virtual government that happened during the pandemic, was the ability of people to testify at committee meetings, without having to get in their car and drive all the way to Richmond. This is especially true for people in, like, Northern Virginia, that's like a two hour drive, or people out in Southwest, that's like a three hour or four hour drive for some people. So I mean, imagine getting up at like 4am or 4:30am, getting in your car, driving for hours, and hours, and hours, to get to Richmond, to get into the committee room at like 7:30 in the morning, or whatever it is, and then only to find out that the bill you came there for is going to be like tabled until next week, you know? So this allowing people from across the state to testify for or against legislation from the comfort of their home has been a great development. And I think everybody is sort of universally happy with that. What Senator Peterson expressed reservations about, is bodies that make actual decisions, like a city council, like a binding decision, of board of zoning appeals, like those need to be done in person. And I'm not sure what to make of that. What do you what do you make that argument?
Thomas Bowman
Well, two things. One, I see where Senator Peterson's coming from. Because if you need to, in the middle of the session, have a huddle, one on one, you can do it very quickly, efficiently, and come to an agreement, get it out of the way. That's especially useful for negotiated agreements. It's a little bit more challenging to do that with managing a bunch of individual texts or chats, and you miss a lot when things are just by text. So I do understand where the Senator is coming from, I think we need to be in a position to be able to do both, right, it's not only going to be virtual, it's gonna be a mixed participation, some in person, some virtual. But then I also get the sense that there's a little bit of, you know, limited participation is a feature, not a flaw, to some of these people. And by that, I mean, they are human beings, they want to go home at a reasonable hour, they want to not spend all day long in a meeting or a hearing. And so the more people that are participating, the longer their day gets, it's as simple as that. And they don't want that.
Michael Pope
Hmm, interesting. Also in the news, The Kids Are All Right. In fact, they're currently celebrating a big win getting a bill through the House, and the Senate, and onto the Governor's desk. Matthew Savage is a teenage Democrat who helped create the Virginia Bipartisan Civic Engagement Coalition. And he worked with lawmakers to craft a bill creating a new advisory board of students from across Virginia.
Matthew Savage
We saw decisions made during the COVID era, where we felt students weren't being very represented in these discussions, in these conversations. And therefore, you had these people making decisions that impact us more than they do anyone else. And we weren't really being involved.
Michael Pope
Now, the original idea was to add a non voting student member to the State Board of Education. But then, as the bill moved through the Senate, it changed into a bill creating an advisory body that would make an annual report to the Board of Education. Brady Hillis is a teenage Republican who helped create the coalition.
Brady Hillis
We don't want someone to be sitting on the Board of Education just as a resume builder, and not actually represent the students across Commonwealth. If there's a group of them, that annually report to the Board of Education, the Board of Education is going to hear those concerns. And it's going to make more of an impact than just one non voting student advisor every year that goes to the quarterly meetings of Board of Education.
Michael Pope
Okay, so Thomas, this is a feel good story here. Undoubtedly a feel good story. You've got these two high school students, one Democrat and one Republican, who got together, created this coalition, took a bill to lawmakers, and now it's on the Governor's desk. And here's the kicker, Thomas, this is not the first time they've done this. Last year, the same duo here, Savage and Hillis, had a different bill. And they got it signed by the Governor. And it allows students, high school students, to not be counted absent when they're off doing advocacy. So in doing this story, to interview Brady Hillis, he was here in the Pocahontas Building, where I am at right now. And he was here doing advocacy. And so he was not counted absent from school because of this bill that he helped pass last year. Now he's got another bill on the Governor's desk that would create this advisory body. So you know, very impressive teenagers here. So Virginia, of course, has a lot of advisory bodies, what is going to make a successful advisory body for this for these high school students?
Thomas Bowman
Of course, each advisory body and commission is a little different. But what we're looking for are advisory bodies with a clear purpose, and a clear agenda, and a clear reason for existence, a mission statement, if you will. And so these students have created a situation where they have a very clear role and responsibility. And so whether the Board of Education listens to the advisory body is up to the Board of Education, but the fact that we have students participating in the system, is a huge win. And it's also a good model for other regulatory environments. Right? So there's a ton of regulatory environments where the regulators, the elected officials, or the executive branch agencies, have no idea what they're regulating. So here's an idea, for example, with the penal system, to have incarcerated people on an advisory board to give feedback about what's really harmful, and what does work, what doesn't work, or I think about some of my work on the federal side with cryptocurrency. Up until recently, it was very clear that the people talking about cryptocurrency had no idea what they're talking about, what they were regulating. So this is a really good model, and spirit, that you can copy paste in other parts of government. And so I really like the fact that this happened from two students.
Michael Pope
Yeah, it is a feel good story. And guess what? Our next story, Thomas, is also a feel good story. It's about lunch debt. So now, the horror stories about lunch debt, like public school students having lunch debt, they're almost unbelievable. During testimony in one committee hearing this year, students explained how the fear of lunch debt created huge problems. Adele Settle with Settle the Debt brought this issue to the attention of lawmakers.
Adele Settle
So kids who were, you know, involved in athletics, would actually go hungry, and would not get meals, if they didn't have the money to pay for it, and would just be hungry, instead of risking lunch debt so that they would be excluded from their sports meets.
Michael Pope
Now, Delegate Danica Roem, has been working this issue for years, stopping schools from sending parents to collections, for example, or preventing schools from offering students quote, "alternative meals," like a cheese sandwich instead of a hot meal. Now, her latest bill prohibits schools from excluding students from extra curricular activities because of lunch debt.
Danica Roem
Feeding hungry kids is something that we should all be able to agree on. And at a time of very intense partisanship in Richmond, I like to think that the idea of Republicans and Democrats in the Senate and the House coming together to feed kids is one of those things where we get to go home to our districts and say, "Hey, we did something productive, that's actually good."
Michael Pope
Now Delegate Roem tells me that when she was a House freshmen, after she first got elected, she had a bill on lunch debt that did all of these things that we're talking about, and Republicans killed it. And you know, she didn't get her bill. So her strategy, then, was to cut it up into little tiny pieces and pass it piece by piece. And Thomas, she has been successful in passing each and every bit of her lunch debt agenda, including this one that the Governor is now, probably, about to sign, that prevents schools from stopping kids from doing extracurricular activities, you know, like athletes, and people will, you know, on the math team or whatever, like they can still do extracurricular activities, even though they have lunch debt.
Thomas Bowman
Yeah, good for Delegate Danica Roem, because this is a great bill. I remember when I was in school, by the way, the lunch lady would not let you buy lunch, if you were short, regardless of whether you had the capability to pay, and maybe you were just because it was a prepaid debit card. So you're out of money on your card, and there's no invoicing, there's no credit, you literally had to go put the food back, if you didn't have the money to pay. And it was really frustrating to be a student, they don't know how much money they have on their card, and you get all the way up to the front of line, all of a sudden be told that you're out of lunch money. Well, shit, right? Like, what are you going to eat? And you can't learn if you're hungry. So in some ways, it's bizarre to me that we even forced students and their parents to pay for school lunches while they're at school, which is a taxpayer funded, mandated environment.
Michael Pope
You know, actually the scenario you just outlined where you have to take your meal and put it back, like that's incredibly stigmatizing. And you've got, you know, kids can be cruel. And people might be laughing at you. In fact, this is earlier I mentioned this like cheese sandwich, instead of a hot meal thing. Like so, the way schools used to do it is if you had lunch debt, and you couldn't afford to buy a hot meal, they would give you this alternative meal, which is like a cheese sandwich. So everybody else is eating the hot lunch, but you're eating the stigmatizing meal that puts a target on your back, and makes you stand out in a way that's- it can be very unpleasant for kids who are going through a very difficult period in their lives.
Thomas Bowman
All right, let's take a break. Clearly it was a busy session, some good stuff passed. When we come back, we're going to be joined by a friend of the podcast, Brad Kutner. He's now a reporter for National Law Journal. He'll explain to us how a federal lawsuit might totally upend Virginia politics. We'll be right back.
Michael Pope
And we're back on Pod Virginia. We're joined by a friend of the show, someone who has a new title. He's currently the Secretary Treasurer of the Virginia Capitol Correspondents Association and he's the former reporter for Courthouse News Service. Now he's got a new job, reporter for the prestigious National Law Journal. Brad Kutner, thanks for joining us.
Brad Kutner
Hey, thank you so much, Mike. I appreciate it. Great to hear y'all.
Thomas Bowman
Well, we're going to talk about the redistricting cases in a second, Brad, but it's nice to have you back and congratulations. So tell us about the new gig.
Brad Kutner
I will be focusing on D.C. litigation for what is, essentially, a publication mostly for lawyers. I think most of my work is going to be paywalled, for better or worse, but it'll basically be more focused. For those who are familiar with my work, all I do is read lawsuits all day. Now I'll be doing that again, but with a more particular focus in the Capitol regulatory stuff. Administrative Procedure Act disputes, here I come. I love that stuff.
Thomas Bowman
Wake up.
Michael Pope
Well, speaking of waking up, let's talk about this lawsuit here that could totally upend Virginia politics. It was filed by Paul Goldman. Now, Brad Kutner, who is this person? And what is he asking the court to do?
Brad Kutner
So Paul Goldman is a long time Democratic Party activists. He was talking about fighting the Byrd Machine in one interview I had with him. The man has been in Virginia politics for, almost certainly, longer than I've been alive. This story starts back in June of last year, though, I guess technically it starts about two years earlier. So every 10 years, decennial census, you redraw district lines. Virginia is unique for having a House of Delegates election the year after the census. So traditionally, we get numbers, a version of numbers, early so that our legislators can start redrawing the maps ahead of other states. Obviously, between the Coronavirus, and actions taken by the Trump administration, the census process was delayed. Virginia did not get the numbers early as they usually do. In addition, the language about using new maps, immediately following the census, is already in the state's constitution. But following the 2020 Voter Referendum, which created the new redistricting commission, that reinforced- it specifically says in that new constitutional amendment, that new maps must be drawn in 2021, ahead of the elections. So Goldman, in all his beauty, filed suit last June, ahead of the 2021 elections, saying that these elections shouldn't happen, because all we have is old maps. And if we run on these old maps, it would violate the state's constitution. However, he did file it in federal court, claiming in addition to violations of the state constitution, the poorly redrawn maps dilute his vote, because by his math, the population in his district that exists now, varied to an unconstitutional degree, compared to the way the district was drawn in 2011, if that makes sense.
Michael Pope
So Brad, he's asking the court to throw out the results of last year's House of Delegates districts because he's saying those those districts are unconstitutional?
Brad Kutner
He's not asking to throw out the old election, but he was asking for a new election.
Michael Pope
So in terms of what is he asking the court to do? He's asking the court to have a new election. And there's a precedent for this. This actually happened in the early 80s, right? What is...explain the relationship between this case and what happened in the early 1980s?
Brad Kutner
So back in 1980, Republican legislature, back when we had the Voting Rights Act that mattered, they kept drawing House maps that violated the Voting Rights Act. I think it was some racial issue. And so they tried twice, and both times the court said, "Hey, knock it off." And then finally, the court said, "Hey, if you don't do this, right, you're in trouble." And so they did it correctly, finally, but by- well, let me...Sorry, it's been a while since I've gone back over Cosner.
Michael Pope
The important point here is this has happened before, I mean, like this is not, totally, outside the realm of experience. Virginia actually has some experience with having unconstitutionally drawn districts, or at least for a court to decide that districts are unconstitutional, and forcing a special election as a remedy. So that's actually what we're talking about here, right with this Goldman case. That could have huge consequences, depending on how the courts end up ruling on this, because the courts might end up calling for new elections, right, for the House of Delegates?
Brad Kutner
That's what he asked for. But the window for that to happen in time for 2022, is quickly closing. And so the hearing this past Thursday at the Fourth Circuit Court of Appeals here in Richmond, so when Goldman filed the suit, the state, under former AG Herring, filed several motions to dismiss. To many people's surprise, Goldman actually survived motion to dismiss, the Federal Court found standing for him to sue the state Department of Elections because they're the one who hold the elections. And so, you know, questions about the constitutionality of those races would fall on them, but the state immediately appealed. And so what that means is there's time between when the appeal is filed, and when the Fourth Circuit hears the case. That appeal was filed last October, November? And the hearing wasn't until this past month, March, people are always surprised at the timelines for Appeals Courts. And I can tell you, I've been doing this for five years, we could not get an opinion on this until late summer, like way past the window that this happens. And the issue that was up for the hearing was Goldman's standing. So we're not even at the merits of the case. Goldman, unfortunately, wasn't in the best place to explain some of the procedural requirements involved in establishing standing. So he struggled at the Fourth Circuit hearing, especially at this point in the litigation, it's very procedural process. So while he struggled to explain standing, it didn't help that he he wasn't familiar with the way in which to do so, if that makes sense? So he had a decent panel that was sympathetic, and he was representing himself pro se. He's a lawyer, but I don't think he's done too much applicant law, at least at the federal level. The judges were very kind to him. And eventually, through his own forceful persuasion, he got to the merits of the dispute. But the problem at hand was, that wasn't up for the court to decide at this point. Add to that the very successful arguing on behalf of the states by Miyares' new Solicitor General, Andrew Ferguson, let's just say after Tuesday's hearing, I am not exactly confident in Goldman's chances of success. But again, even if he does survive on standing, which I mean, there's a very logical argument that he does, the timeline for a new election in 2022 is quickly closing, and it's not going to get any easier.
Thomas Bowman
You know, we should probably clarify what standing means, it's- just for the non courthouse reporters here. It means a party seeking a legal remedy has to show that they've got, through demonstrating to the court, sufficient connection to, and harm from, the law or action, that they're challenging, that supports their participation in the case. Right? So that's the question at hand is, can Paul Goldman demonstrate that he, specifically, is the right person to be a party to this case?
Brad Kutner
Yeah, sorry to blow over that. But it's literally one of those things that's like, just just trust in that standing is a thing, and he debatably has it.
Michael Pope
Actually, Brad, let me ask about the standing argument here, because he lives in the House district that's currently represented by Delegate Don Adams. And so the- what the argument that he's making to the court is, because this district is 10 years old, and has not been redrawn in the last decade, there are unconstitutional population variations with Don Adam's district that harms him. This is his standing argument. What do you make of that argument?
Brad Kutner
So Judge Wynn pointed out that Goldman used a calculation that appeared to rely on numbers that came out eventually, but part of the problem was the numbers didn't exist when he filed suit. So Wynn questioned exactly how he got to his calculation, and whether or not that calculation was accurate to begin with, and that speaks to a lot of it, and then the state was prepared to argue that the maps were indeed constitutional. And I'm trying to find the line here. So from Ferguson at the bench, "The election is fully in the past. His standing comes from a hypothetical future. If the district court imposes a new election, he will run in that election," that was part of his standing, and he wanted to run, but he didn't know who his constituents would be. The Ferguson again said, "We don't think the 14th Amendment requires states to reapportion on the basis of census data that does not exist when the electoral process has begun." So I think another important part that I spoke to Delegate Simon, Marcus Simon, who's also on the redistricting commission, he brought up a good point, he said he was willing to run again in 2022. But the lack of either state party being involved in the suit kind of speaks to a lack of energy, or excitement, around this new election cycle. But he pointed out that the Senate, the state senate districts, are still consisting of districts from 2011. And those won't change. We won't get new elected senators until 2024 when they take office. So is everything the state Senate does between 2020 and 2024 unconstitutional, because they, technically, don't meet the threshold that that Goldman imagines?
Michael Pope
Yeah, actually, Brad, let me let me ask you about that. So Goldman lives, as I said earlier, and Delegate Don Adams House District. He also lives in Senator Jennifer McClellan's Senate District. Why didn't he file suit against the Senate district as well? Why just the House?
Brad Kutner
The election...
Michael Pope
Oh, the election didn't happen in 2021. Oh, yeah.
Brad Kutner
Yeah, so he- so this was just about, and and I mean, back when this was first getting discussed, I mean, this technically started when former Delegate Lee Carter asked Herring for an opinion from the AG's office on the legality, of the constitutionality, of the 2021 races, because of the lack of new census data, and Herring's office simply never responded. And the federal judge actually brought that up at one point during earlier hearing. But that opinion, AG's office opinion, never came out at our hearing. And similarly, I asked Miyares' office if they had an opinion about it, and they declined to comment on whether or not such an opinion existed, a request had been made, or if an opinion was in process, as they are not required to disclose such. So the general appetite appears to be, "We don't want to do this." And I think the Senate, comparing it to Senate districts, being theoretically unconstitutional until 2024, speaks a lot to this. I've been saying this a lot with courts. It's a heavy lift for a federal judge to step into a state election like this, especially with State House districts, like this isn't a congressional, like, Federal Congress thing. This is the state's legislature, which would normally be the purview of the State Supreme Court.
Thomas Bowman
You mentioned new Attorney General Jason Mijyares, because a lot has happened since this case was filed. Do we have any indication that Miyares' office is handling this case differently from Attorney General Herring?
Brad Kutner
They didn't file any- not that I saw any dramatically different brief. I mean, again, this was on standing. So a lot of that is very procedural language. This is a long shot to begin with. And there's definitely been some activists I've seen get really excited about it. But there are plenty of folks who had no idea this was going on. And I think that speaks as much to this concept as anything else. And I was saying this ahead of the hearing, you know, ACLU, some NAACP's came out in support of Goldman, all these all these organizations, the League of Women Voters said they supported Goldman in his suit, but they didn't file amicus briefs, they didn't file documents that supported him with legal arguments, which would have made a much stronger showing of support, part one, and part two would have, significantly, increased his chances of success, considering the very large hurdle he would have to cross for a federal court to intervene in a state election like that.
Michael Pope
Brad, can we put standing aside here, for a moment, and talk about the merits of the case? So Virginia's Constitution calls for the election of newly created House members in newly created districts the year after the census? So that was 2021. That did not happen in 2021. So the election that happened last year, unless there's something I'm not understanding here, the election that happened last year is clearly unconstitutional. Right?
Brad Kutner
And you didn't even get to the redistricting amendment, which clearly states the Redistricting Committee starts the process in 2021. There's...so this is this concept is re emphasized twice in the states founding document. So technically, it's unconstitutional twice. But as with any legal decision, you have to weigh the harms, you have to figure out what the remedy would be, and who would be burdened by that remedy. You're asking to overturn a successful election in 2021. You're asking, I mean, delegates, the the language, other language in the Constitution says delegates serve two terms. At the beginning of session, I asked Gilbert, about this. And he said, "We plan to serve two terms." Yeah, I mean, before the election, there were questions about if either party who lost would join the suit, in an attempt to try and retake. That obviously didn't happen. With any suits like this, when you're doing something so dramatic as forcing a new election, you've got to weigh all all the all the elements and every part of what that decision's impact will be. What's what's the greatest benefit there? And what role should the court, particularly a federal court, have in asserting its authority over the state legislature like that?
Thomas Bowman
So clearly, this lawsuit is also running against the clock, right? And if the courts already take a long time to decide, and as you've described, the Department of Elections might be trying to slow walk the case, there are more than one scenario for how this could play out, as far as forcing a special election, but it's not guaranteed to happen in November of 2022. It could be a special election in early 23, or at another point in 2022. And still you don't get the turnout boost of the federal voters.
Brad Kutner
That would be insane.
Thomas Bowman
Yeah. Well-
Brad Kutner
If the court was going to try and force a new election, forcing it outside the- because we already have an election. We have congressional races this year, to try and push an election on either side of that. I couldn't imagine, in the realm of heavy lifts for the court to take, that would be...because they're still going to run again in 2023.
Michael Pope
Well, Brad, think about the early 80s. I think people in the early 80s, if you approach them with this idea that the House of Delegates would have three consecutive years of elections, they would have said, "Well, that's crazy. That's a heavy lift." But that's what happened. Right? So like..
Brad Kutner
Part of the 81 stuff, which I was trying to get to, but couldn't, you know, word salad my way out, was- and I've argued with some folks about this, my interpretation of the 80 of the cause their decision was, it was essentially a punishment, or at least a threat of punishment, that if these new maps weren't drawn in time, then they would get forced to run again. And sure enough, that's what occurred. So it was a resolution to an ongoing, and clearly larger issue, I guess. I mean, you're like, I feel you, and I understand. And I don't know if the racial issues should necessarily weigh heavier than the apportionment issues? But yeah, I, I think the lack of amicy, the lack of other groups joining in the legal argument here, speaks to an an overall feeling that nobody wanted to do this. And that that, in of itself, informs the court as to how they proceed, if that makes sense.
Michael Pope
All right, Brad. I want to put you on the spot here and ask you one last question, which is give us a prediction, how, I want to separate this out into a standing prediction, and a merits prediction. What's your prediction for what happens with the standing question? And what's your prediction for, if they ever get around to the merits, what they might actually do, in terms of the remedy for all of this?
Brad Kutner
I think Ferguson for the state brought up a good point that the continued existence of this suit calls into question the legitimacy of the electoral process. And that was part of his broader dismissal argument for reversing Goldman's standing, that the longer this suit continues, the more it puts uncertainty on the election process, which I think should weigh heavy. I think they might roll back standing, unless they want to just see what happens. Either way, it could be months before the Fourth Circuit rules. And then at that point, you're just getting to the merits argument. Let's say they rule in two months. So that's what, May, let's say they rule on by May 10, which is entirely unlikely. I see cases from 2019 getting opinions here in 2022. Like it's it's...the courts take their time. So there's that. And then there's the continuation of the suit in federal court. And then, when I spoke to Simon, he said, the most realistic timeline for a new election would be a decision by early July, like very like July 1, would be required in order for the states multitude of other election laws to still be maintained, and followed in the course of a new election. So I mean, I think more broadly, unless they rule in the less, in the next month, and give him standing, affirm his standing in the next month, I don't think this goes much further. As far as the merits, again, I think it's a very heavy lift for a federal court to step in and a state legislative race, particularly when they'll be running again next year, on an issue that very few people were willing, that only one person, was willing to put themselves on the line, legally, to fight. Had there been more energy around this, this might be a different conversation. But for whatever reason, and I mean, and when Democrats were in control, they had special sessions late last year, they knew this was going to be a problem. If Democrats wanted to fix this, or if Republicans wanted to fix this, they could have submitted legislation to address this problem. I'm pretty sure Alabama, specifically, did, like the other states, we're not the only state who does year after census elections. So the legislators failure to act, combined with the lack of interest from outside parties, just doesn't weigh in Goldman's favor here, but I'm also not a lawyer.
Thomas Bowman
Well, it sounds like Paul Goldman, regardless of how the court stuff plays out, the practical result that he's looking for, he's probably unlikely to get, based off what you're telling us today. And Brad, I know you're busy. So we're gonna let you go. Thank you so much, Brad Kutner of The National Law Journal. Thanks for joining us.
Brad Kutner
Thanks for having me on guys. I appreciate it. And I hope we get the chance to speak again soon.
Michael Pope
Pod Virginia is a production of Jackleg Media. Our producer is Aaryan Balu, our Social Media Manager is Emily Cottrell, and our Advertising Sales Manager is David O'Connell.
Thomas Bowman
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Michael Pope
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