Justices on the Virginia Supreme Court sounded uncertain of whether a recently passed redistricting amendment that could create four more Democratic seats in Congress should be approved.
Republicans fighting the redistricting bid argue Democrats in Virginia’s General Assembly broke procedural rules by failing to give voters ample notice about the new maps and failing to observe deadlines for special sessions. Though voters approved redrawing Virginia’s congressional map 51% to 49% — and after the General Assembly approved the amendment last year and once again in January — Republicans say it should still be void. A district judge put the amendment on hold in February.
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On Monday, the Virginia Supreme Court asked a few questions. Justice Wesley Russell appeared most openly dubious about the redrawing and the fairness of early voting and special sessions generally. Russell was particularly concerned about whether early voting harmed people who may have voted for a candidate but later did not support that candidate’s redistricting stance.
But that, according to Virginia’s attorney Matthew Seligman, is “endemic to early voting” and is a risk every voter takes when they cast their ballot early. In Virginia, Seligman said, “every voter has their choice to vote on Election Day.” In this case, Democrats voted for Democratic candidates who supported redistricting, and the amendment was ratified properly until the courts stepped in to stop it.
For constitutional amendments to be passed in Virginia, rules require that they be passed twice and wedged between an election.
When Virginia legislators finalized the redistricting amendment at the end of October last year, they did so in the middle of a “special session” that had first been called in 2024 by then-Gov. Glenn Youngkin (R), to deal with the state’s budget.
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The General Assembly had referred the proposed amendment for its next session after the general election on Nov. 4. The General Assembly then passed the proposed amendment a second time in January this year. The people voted on April 21 to approve it.
Russell lamented Monday that this “special session,” however, had lasted two years. To that point, Thomas McCarthy, an attorney for the Republicans fighting the measure, argued that the legislature would never have considered the referendum if not for the “improperly expanded special session.”
A majority two-thirds vote is required just to convene a special session, McCarthy argued, and Virginians met for the special session in October with only a simple majority.
“Virginia has long distrusted legislative power and feared the tyranny of permanent legislature,” McCarthy said. “That’s why there are strict limits.”
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Moreover, he argued, Democrats shouldn’t have been able to propose anything unrelated to the state budget, since the budget was the original reason Youngkin called the 2024 special session.
But the “bare partisan majority rammed it through the legislature,” anyway, McCarthy said.
But as Virginia Solicitor General Tillman Breckenridge argued, this wasn’t forced on anyone, and the legislature was allowed to stay in recess for as long as it wanted. Plus, there was no “perpetual” governance here, Breckenridge argued, “they only actually did business for 14 days” during that special session.
Arguments on Monday also featured an ironic twist.
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Often Republicans, especially those who support President Donald Trump, claim early voting is akin to cheating because it improperly expands the amount of time the Constitution sets for an election. Republicans at the U.S. Supreme Court only last month argued that when it comes to an “election,” an “election” should only be defined as one day, Election Day.
But in challenging the amendment that would benefit Democrats, Republicans have urged the Virginia Supreme Court to view the “election” in its entirety, including the early voting period, rather than a single day.
“None of these voters had any idea [this amendment] was coming,” McCarthy said. “And that’s not how this process is supposed to work.”
It is unclear when the Virginia Supreme Court will rule, and no deadline is set.
