The first day of class in law school my Procedures professor told us: “You give me the rules of procedure, and I’ll give you the law; and I’ll win every time.”
He was right.
One of my favorite comic strips, the stuff that used to make newspapers worth reading (Ask yer grandfather! Punk kids.) appeared in the student newspaper at UT Austin in the late ‘70’s. It was drawn by a law student, and the strip I’m thinking of is when his cartoon protagonist has left law school and joined a firm. A client enters, and angrily declares: “I’m in a bad mood, and I wanna sue!” Which our hero declares to be the motto of the law firm. And there (as the cartoonist knew), our confusion begins.
AOC: All those maps were passed by the state legislatures. Virginia was an election of three million Americans. This court did not overturn a map, it overturned an election. It’s one thing for a court to check a legislature or an executive but the end-all and be-all of power in America should be the people.
There’s a category error there; the same one Gavin Newsom is making here:
I suspect none of those states, like Texas, required a vote to redistricting for House elections. California, as I understand, only needed it to change their constitution; pretty much what Virginia did.
But Virginia didn’t follow procedure.“We hold that the legislative process employed to advance this proposal violated Article XII, Section 1, of the Constitution of Virginia," the ruling stated. "This constitutional violation incurably taints the resulting referendum vote and nullifies its legal efficacy."
The state spent $5.2 million for the special election and outside groups raised nearly $100 million to persuade voters, and the new map – which was in response to Republican-led states that redrew districts to add GOP seats – was expected to shift state's congressional partisan split from 6-5 to favor Democrats 10-1.
"The Constitution prescribes a way by which a ballot referendum can occur," said Virginia Tech professor Cayce Myers, explaining Republican arguments against the referendum, "Generally speaking, the ballot referendum has to pass through the legislature, there has to be an intervening election, and then there's another passing of the vote, and then it goes on the ballot."
"That process, by just looking at it from a constitutional perspective, looks like a long process," the professor added. "This process was very fast because there was a special session."
I didn’t write the Virginia Constitution; but according to the Virginia Supreme Court and the quoted expert, that’s what it requires. And failure to follow procedure means “Do not pass ‘Go,’ do not collect $200.” This is the same reason Donald Trump has failed, again and again, to prosecute those he is angry with, since January 2025. And frankly, when even AOC complains about it, she sounds a lot like Trump.
Procedure is the price of justice. Without procedure, Trump would be a tyrant, and all his “enemies” would be in jail. Most of our prized constitutional protections are, in the end, procedural. Equal protection and due process are about procedure. The law dances to their tune. It doesn’t always give us the results we want; but it protects us from the results tyrants want. For the most part.
Put it this way: if Texas (I know Texas law a bit better) had held a referendum on redistricting, it would have been a nullity. We didn’t have to vote to change the state constitution because ours doesn’t ban redistricting between decennial censuses. (It has more failings than that.). In fact, mid-decade redistricting began in Texas. So far as I know, Tom DeLay started it when he got the Lege to do it back when he was in the House, and the pictures of him in a hot tub were still private. Times change, eh? The only time redistricting is up to a vote of the people is when we pick the people to represent us. Ideally, redistricting would be done by independent commissions in all 50 states, and we wouldn’t have this nonsense. But no matter how it’s done, redistricting is always based on old data. Like the prospectus warns, past performance is no guarantee of future results. Districts change population; groups that voted one way two years ago, may not vote that way two years later. This is expected to be precisely that kind of election.
I started this talking about a comic strip and a potential client who wants to sue. The problem is, the legal system doesn’t work that way. And it doesn’t work that way because procedure determines who can get into court, among other things. Consider how the court is handling Trump’s suit against the IRS. As the court points out, Trump is no longer adversarial to the government. He is the head Administrator of the government. He’s the boss of the agency he sued as a private citizen. Procedure says, without adversarial parties, there is no lawsuit. It’s the essence of conflict of interest. Trump loses, because Trump won.
I expect, at least, that will be the outcome. And it’s entirely down to proper legal procedure. Bitter with the sweet. Sometimes you like the result; sometimes you don’t.
That usually means justice has been done. As the outcome of the legal system, anyway. More than that affiant sayeth nought.
*And so it is. But the route is not direct.
