Virginia’s Gerrymandering Fight Is Far From Over

Despite what you have been told by the legacy media, the April 21 referendum on the gerrymandered congressional map created by Virginia’s Democrat General Assembly was not the last word on redistricting in the commonwealth.

The referendum asked the voters to answer “Yes” or “No” to this question: “Should the Constitution of Virginia be amended to allow the General Assembly to temporarily adopt new congressional districts to restore fairness in the upcoming elections, while ensuring Virginia’s standard redistricting process resumes for all future redistricting after the 2030 census?”

“Yes” prevailed 51.5 percent to 48.5 percent.

Naturally, Democrat Governor Abigail Spanberger and her accomplices in the General Assembly were delighted with the result, but that didn’t last very long. Tazewell County Circuit Judge Jack Hurley issued a permanent injunction on April 22 blocking certification of the referendum on the grounds that it violates a number of Virginia’s statutory and constitutional provisions. The commonwealth’s Attorney General, Democrat Jay Jones, appealed Judge Hurley’s injunction the following day, but the Supreme Court of Virginia (SCOVA) denied his appeal on April 28. This denial was a major setback for Democrats and bodes ill for their gerrymandered map.

The upshot of the flurry of court proceedings is that the Democrats cannot implement their outrageously partisan congressional map until three lawsuits challenging its constitutionality make their way through the Old Dominion’s court system. Consequently, Virginia’s current congressional map will remain in place with its relatively balanced mix of six Democrat districts and five Republican districts.

If the new gerrymandered map manages to survive the ongoing litigation, Virginia will end up with 10 Democrats in the House of Representatives and only a single Republican. This would make Virginia the most gerrymandered state in the country and effectively disenfranchise a vast majority of the 47 percent or so of Virginians who tend to vote Republican.

The new map’s survival seems less and less likely, however. The day before SCOVA denied Jones’s appeal of Judge Hurley’s injunction, it heard oral arguments that did not go well for Spanberger and the Democrats.

Oddly, the lead attorney arguing on behalf of Jones’s office, Matthew Seligman, was flown in from a California law firm. As expected, his opening argument was that the referendum was the final word in the dispute over the new district map – a variation of Jones’s assertion that “the people have spoken” and that the election settled the legal question once and for all:

“The people approved the proposed Constitutional amendment last week on Tuesday, April 21st. The General Assembly and the people thus complied strictly with every step that the Constitution requires. That is all that Article XII requires. As a result, the proposed amendment has been ratified and is now part of the Virginia Constitution. The circuit court attempted to interfere with that democratic process by halting it.”

Justice Wesley G. Russell Jr. interrupted Seligman at this point. “I don’t understand that as a legal argument,” he said.

Referencing a century-old SCOVA precedent, Russell told Seligman that a “Yes” vote doesn’t cure potential constitutional violations made during the introduction of an amendment, which is actually the issue at the heart of the case. Seligman admitted that the court has the authority to review the challengers’ claims but insisted they were wrong on the merits.

“But the fact that there’s a ‘Yes’ vote doesn’t tell us anything about those merits,” Justice Russell shot back. Former Virginia Attorney General Ken Cuccinelli outlined on X the major violations committed when the amendment was introduced:

• First passage was invalid. The amendment was taken up during a special session convened in 2024 for budget purposes. The General Assembly’s own call to the Governor (under Art. IV, §6 and Art. V, §5) and its governing resolution (HJR 6001) limited the session’s scope. Expanding it to include a constitutional amendment on redistricting required a two-thirds vote that never occurred.

• Art. XII, §1 requires that after first passage, a proposed amendment be “referred to the General Assembly at its first regular session held after the next general election of members of the House of Delegates.” An election must intervene between first and second passage. Here, first passage occurred during an election cycle—not before an intervening one.

• Art. XII, §1 requires the amendment be submitted to voters “not sooner than ninety days after final passage by the General Assembly.” The timeline from second passage to the April 21 vote did not satisfy this requirement.

Cuccinelli also pointed out in an opinion piece for Fox News, “If the Virginia Supreme Court strikes down the amendment on any of the three procedural grounds, the referendum result is nullified.” Attorney Thomas McCarthy, who represented the challengers, argued that the Democrats violated all three of the constitutional requirements listed by Cuccinelli. He specifically emphasized their failure to meet the two-thirds requirement to expand the special session to include the consideration of an amendment on redistricting: “A bare partisan majority of the General Assembly rammed the proposed amendments through the legislature.”

McCarthy also said the Democrats failed to meet the requirement to give the public 90 days’ public notice before a constitutional amendment moves forward. The Democrats didn’t unveil their redistricting amendment until a week before Election Day last year. By that time, more than 1.3 million voters had cast ballots – most of which went to Abigail Spanberger, who told Virginians she was against partisan gerrymandering.

Indeed, Spanberger advertised herself as a supporter of the Virginia Redistricting Commission (VRC). She specifically stated that she had “no plans to redistrict Virginia.” Yet, she gleefully approved and campaigned for the referendum meant to kill the VRC and enact a radical partisan gerrymander.

It’s difficult to predict how the Virginia Supreme Court will rule on this issue. That they refused to lift Judge Hurley’s injunction against certifying the referendum suggests they are rather queasy about the tactics used by the Democrats to introduce their 11th hour constitutional amendment – not to mention Spanberger’s VRC flip-flop. Moreover, four of the seven justices are Republican appointees and only three are Democrat appointees.

On the other hand, it’s no small matter to nullify the votes of the approximately 1.6 million Virginians who voted “Yes” based on what the Democrats will certainly characterize as “technicalities.”

The Court is expected to issue a ruling sometime in early May after all the lawsuits have been fully adjudicated. Hold on to your hats. Whatever SCOVA does, all hell will break loose.

David Catron is a Senior Editor at the American Spectator. His writing has also appeared in PJ Media, the American Thinker, the Providence Journal, the Catholic Exchange and a variety of other publications.