This has been a good week for Mark Herring and a not-so-good one for Kirk Cox and Walter Coles.
For Herring, the state’s two-term Democratic attorney general, it’s maybe been even better than a good week. It’s been a great week.
Since February, he’s been caught up in his own “blackface” scandal — although his more forthright confession about darkening his face in college to imitate rapper Kurtis Blow seemed to spare him the condemnation that fell on Gov. Ralph Northam for doing much the same. Of course, the fact that if Herring resigned, a Republican-controlled General Assembly would pick his successor may also have tempered Democratic outrage somewhat, too. Still, instead of being the favorite to win the Democratic nomination for governor in 2021 — especially after Lt. Gov. Justin Fairfax was accused of sexual assault — he’s had to watch as other potential candidates emerge.
Now, much as Shakespeare’s Richard III saw a “winter of discontent made glorious summer,” Herring is undergoing the same happy transformation. Well, happy for him, anyway.
Over the weekend, he set Virginia’s political conversation alight with a proposal to first decriminalize marijuana and then ultimately legalize it altogether. The former is not that radical; even the state Senate’s top Republican, Tommy Norment, R-James City County, has called for the same thing. Still, as a statewide official, Herring is the bigger name. The Daily Press in Newport News observed: “The call from the state’s top lawyer to decriminalize marijuana possession could be enough to break the question free from the General Assembly committees where it has died in recent years, politicians and lobbyists who follow the issue say.”
That’s a potential victory. On Monday, the U.S. Supreme Court handed Herring not one but two actual victories.
First, the court ruled 5-4 to let stand the latest redistricting map for the Virginia House of Delegates. Politically, this was a big win for Democrats, and Herring hopes they remember whose office argued that case. That’s if there’s any gratitude in politics. There’s not, of course, but that’s beside the point for now.
For the past two years, Republicans have clung to the narrowest of margins in the House of Delegates — 51-49 (now 51-48 with a vacancy). Republicans were already fretting because 12 of their seats are in districts that Democratic statewide candidates have recently won. Then courts ruled that 11 districts in the eastern part of the state were racially gerrymandered to dilute African-American votes — and to fix those 11 districts proceeded to draw new lines for 25 districts. The bottom line: The new House map makes a half-dozen Republican districts much more Democratic; some in those originally endangered 12 and some additional ones. The district that the court changed the most is the one held by House Speaker Kirk Cox, R-Colonial Heights. That means Cox must now fight a two-front war: He has to personally fend off a challenger in a reconfigured district that tilts Democratic (Tim Kaine took 56% of the vote there in last year’s Senate race) while trying to hold onto his party’s majority statewide. Has Virginia ever had a speaker of the House lose re-election? Not in modern times, which is a fancy way of saying we can’t immediately determine what happened back in the 1800s.
The Supreme Court’s ruling is a curious but instructive one. We’re accustomed to 5-4 court rulings, but here the court’s liberals and conservatives were both split, because not everything divides neatly on a left-right scale. The five-member majority included liberals Ruth Bader Ginsberg, Elena Kagan and Sonia Sotomayor but also conservatives Clarence Thomas and Neil Gorsuch. Liberal Stephen Breyer joined conservatives John Roberts, Samuel Alito and Brett Kavanaugh in the minority.
Republicans were disappointed that the court never addressed the merits of the case — and maybe everyone should be. The court declined to address whether the previous maps really were racially gerrymandered as lower courts ruled and what the standards for districts should be. After all, it’s 2019 — we’re one year away from a new census yet we’re still fighting court battles over maps drawn from the previous census in 2010. At this rate, we’ll be arguing over the maps that come out of the 2020 census in 2029.
Clearer standards might prevent decades of confusion, court cases and lawyer enrichment. Instead, the justices dealt only with a procedural issue: Who had the right to sue? House Republicans argued that the GOP-run House of Delegates could sue; Herring argued that as, attorney general, only he could speak for Virginia. In the end, the court agreed. In effect, the liberal Herring won a victory for state’s rights. Someday if there’s a Republican attorney general trying to block Democrats from suing over redistricting, Democrats will be unhappy about that but for now, they’re reveling in better odds going into November.
Ironically, Herring’s other big court victory was another victory for state’s rights: The U.S. Supreme Court ruled 6-3 that the federal Atomic Energy Act did not preclude Virginia from regulating the mining of uranium in the state. Since Virginia has banned uranium mining, the court effectively said that was OK.
Once again, the court’s ruling did not conform with expectations. The six-member majority included liberals Ginsberg, Kagan and Sotomayor but also conservatives Gorsuch, Kavanaugh and Thomas. In the minority were the conservatives Roberts and Alito and the liberal Breyer. If you’re scoring at home, the Trump appointee Gorsuch just cast two votes that make liberals in Virginia very happy (he even wrote the decision in the uranium case). Of course, it’s not just liberals who are uneasy about the prospect of mining uranium. There’s been bipartisan support for that ban. The last Republican governor, Bob McDonnell, supported it; in the last governor’s race, Republican Ed Gillespie wanted to lift it.
The person unhappiest about the court ruling is likely Walter Coles Sr. He owns the Pittsylvania County farm that sits atop a geological curiosity — one of the world’s largest deposits of uranium, squeezed into a single crevice that dates to the breakup of the prehistoric super-continent of Pangaea. By some estimates, there’s $7 billion worth of uranium down there. Coles sees money to be made; Virginia sees environmental problems measured in isotopes. Herring now sees two big victories. You might even say he’s on a high.