With voters now having weighed in, passing the Virginia Reditricting Referendum by a 3-point margin, this Monday, the Virginia Supreme Court will hear arguments in an attempt by Virginia Republicans to overturn the will of the voters.
A trio of lawsuits still pending could derail the redistricting measure.
There’s the original lawsuit brought by state Republicans at the Virginia Supreme Court. That will be heard on Monday.
Another one in Richmond Circuit Court, which was filed by Representatives John McGuire and Rob Wittman.
And there’s a case brought by the RNC being heard in Tazewell County.
“I am so proud of my team for stepping and working tirelessly to make sure that this continues to move forward and so we will take everything as it comes,” said Jay Jones, (D) Virginia’s Attorney General.
Those against the measure are vowing to continue the fight all the way to the U.S. Supreme Court.
They hope the slim margin of passage will give them wind in their sails.
It’s their Hail Mary move to keep Virginia’s congressional maps the way they’ve been since 2020.
So what might happen with the Virginia Supreme Court case? Here are a few thoughts from people with legal expertise. First, though, here’s the lay of the land in terms of who’s on the 7-member Virginia Supreme Court.
- Chief Justice Cleo Powell: “The first African-American female to serve on Virginia’s highest court, since 2011, she is also the fifth woman to serve on the court.” “Following the death of Leroy R. Hassell, Virginia governor Bob McDonnell nominated Powell to fill the vacancy, then legislators elected her to the Virginia Supreme Court on July 29, 2011 [note: the House of Delegates as controlled by Republicans at that point; the State Senate was controlled by Democrats], and Powell took the oath of office on August 2, 2011. She was re-elected twelve years later, and took the oath of office for her current twelve-year term on October 21, 2023, so her term expires in 2035.”
- D. Arther Kelsey: “He was appointed by Governor Mark R. Warner to the Virginia Court of Appeals in August 2002. He was subsequently elected by the General Assembly for an eight-year term in 2003 [note: both the House of Delegates and State Senate were under Republican control at that point] and re-elected in 2011 [note: the House of Delegates as controlled by Republicans at that point; the State Senate was controlled by Democrats]. The General Assembly unanimously elected Kelsey to the Supreme Court on January 20, 2015, for a twelve-year term beginning the following February 1.”
- Stephen R. McCullough:
- Teresa M. Chafin: “On February 14, 2019 [note: both the Virginia House of Delegates and State Senate were narrowly controlled by Republicans at that point], she was unanimously elected by the Virginia General Assembly to be a justice of the Supreme Court of Virginia, replacing Elizabeth A. McClanahan who retired on September 1, 2019.” Note that Chafin is the sister of former Delegate and State Senator Ben Chafin, a conservative Republican.
- Wesley G. Russell, Jr.: “On June 17, 2022 [note: at that point, the House of Delegates was controlled by Republicans, the State Senate was controlled by Democrats], Russell was elected by the Virginia General Assembly to a 12-year term on the Supreme Court of Virginia beginning July 1, 2022”
- Thomas P. Mann: “In June 2022 [note: at that point, the House of Delegates was controlled by Republicans, the State Senate was controlled by Democrats], Mann was elected by the Virginia General Assembly to serve as a justice of the Virginia Supreme Court for a 12-year term commencing August 1, 2022. He succeeded William C. Mims.”
- Junius P. Fulton III: “In 2025 [note: at that point, the State Senate and House of Delegates were both controlled by Democrats], he was appointed to the Virginia Supreme Court by the General Assembly to replace S. Bernard Goodwyn, who retired from active service on December 31, 2025.”
In sum, as a comment on this Facebook post by former VA Lt. Gov. Bill Bolling (R), who (erroneously?) claims the court leans 4-3 Democratic, says: “Four of the justices – Kelsey, McCullough, Russell, Chafin – have Republican pedigrees. Fulton was selected by a Democratic legislature. Powell and Mann were selected when the General Assembly was split.” In short, this is most definitely NOT a liberal court by any measure; the bigger question is whether it’s more of a “small-c conservative” court or more of a partisan-Republican-majority court. But clearly, only one of the justices (Junius P. Fulton III) was selected when both the House of Delegates and State Senate were simultaneously controlled (albeit narrowly) by Democrats. Now, of course, that doesn’t predict how the justices will rule on this case, but it’s something to keep in mind going forward, IMHO…
Anyway, with that, here’s some analysis by lawyers and/or law students.
First, check out this Twitter thread by Kyle Ford (Appalachian School of Law, Class of 2025) on the Tazewell County Circuit Court judge (Jack Hurley)’s ruling on Wednesday afternoon. A quick summary:
- “The January ruling had three grounds. Today’s has seven substantive grounds plus follow-on rulings. Four of those seven are new. I’ll work through them.”
- ” The original three are unchanged from January. Special session scope, intervening election, § 30-13 publication. I covered those at length in my January and February threads. I’m not repeating that analysis here. Yesterday’s new material is where the action is.”
- “The appellate path is already partly laid. Grounds 1 through 3 are at SCOVA in Scott v. McDougle, Record No. 260127. SCOVA stayed Hurley’s TRO in this case on March 4 under Scott v. James, 2026 Va. LEXIS 15. Yesterday’s judgment lines the rest up for expedited review.”
- ” Tuesday’s referendum is done. Votes are cast. Whether they count depends on the appeal. As I noted in January, Scott v. James, 114 Va. 297, 304 (1912), contemplates post-ratification review. The judiciary has the ‘duty’ to review an amendment ‘when put in force.'”
- “On text, treatise, case law, and historical practice, the weight is on one side. I don’t expect the judgment to survive.”
The final point is the takeaway: he doesn’t expect Judge Hurley’s “judgment to survive” the Supreme Court, which means that the redistricting referendum YES vote would be affirmed by the Supreme Court of Virginia.
Second, check out attorney and Virginia political analyst Sam Shirazi’s “Next Stop: Virginia Supreme Court,” which he posted this morning. Key points include the following (my comments in parentheses/green/bold)
- “If [the redistricting referendum] didn’t pass, that would bail them out essentially, and they wouldn’t have to rule on the redistricting referendum. However, it did pass. And now the Virginia Supreme Court is in the position where they said that they would rule if it passed and it passed. So now they have to rule.” (Yep, they definitely didn’t want to deal with this, were probably hoping it would fail, but nope! Also, I think a lot of Democrats were hoping the referendum would pass by such a wide margin – 10 points or whatever – that it would deter the VA Supreme Court from striking it down, thereby overrulling the will of a clear majority of Virginia voters. In the end, though, the referendum “only” passed by 3 points, so not a landslide by any means, although a solid-enough win – a point or so larger than Youngkin’s margin in 2021, for instance, and Youngkin claimed he had a mandate, had won a resounding victory, etc! LOL)
- “…long story short, Virginia Republicans go back to the judge in [deep-red] Tazewell County. The judge in Tazewell County, not surprisingly, ruled completely for the Republicans and basically said the redistricting referendum was not valid and interestingly prevented has placed the injunction telling the Virginia Department of Elections that they essentially cannot certify you a district referendum because it is not a valid referendum.” (This Tazewell judge is exactly what Republicans claimed for years that they HATED, namely an “activist judge,” except that in this case, he’s a *right-wing* judicial activist, not a liberal, so it’s all good with Republicans, apparently. Just like they HATE gerrymandering when Democrats do it, but are 100% for it when THEY do it, and also voted unanimously against legislation to ban partisan gerrymandering nationally.)
- “The next few days are going to be important because on Monday, there will actually be oral arguments on this case. Now, it’s not exactly on the judge’s order that he issued right after redistricting referendum. it’s It’s basically a preexisting case. But I can’t imagine the Virginia Supreme Court is not going to be talking about the merits of the case.” (Right, so the VA Supreme Court will show us all what it’s made of…for better or for worse, with massive ramifications into the future.)
- “…the Virginia Supreme court is just going to rule and they’re going say either, yes, the referendum was valid or no, it wasn’t valid. And they can’t kick the can down in the road anymore. The reason they can’t kick kick the can down anymore is because, the filing deadline in Virginia for the congressional seats is May 26th. So if you’re a congressional candidate, you have to know which district am I running in because the districts look pretty different.” (So May 26 is just over four weeks from now; obviously, not a lot of time, and candidates are already running – plus Republican incumbents in VA01, VA05 and VA06 could have some huge decisions to make – so it’s really essential to get a ruling from the VA Supreme Court, preferably within the next week or two…)
- “I do think a lot of this comes down to framing and how does the Virginia Supreme Court look at this? Do they look at this more big picture, which is what the Democrats, I think, want them to do, is to look big picture? Or do they want it, or do the Virginia Supreme Court look at these things more in the weeds, details, which I think is more what the Republicans want to do?”…What the Democrats are essentially trying to tell the Virginia Supreme Court. And I think it’s really just big picture. Majorities of both the General Assembly and of the Virginia voters passed this thing. So if you think about what happened right before the election, the General Assembly, the Virginia House Delegates, the State Senate, majorities of those bodies passed this redistricting referendum. There was an election. The Democrats won that election. And then in January, the Democrats once again passed this thing with majorities in the Virginia House of Delegates in the Virginia State Senate. So twice in two different sessions of the Virginia General Assembly, this thing was passed with majorities. And then it was put on the ballot and a majority of Virginians, over 1.5 million Virginians, passed this thing and and voted for this thing. So essentially what the Democrats are arguing is the constitutional requirements have all been met big picture. If you look at the big picture, was passed in one session of the General Assembly. it was passed in another session of the General Assembly. A majority of the voters in Virginia passed this thing. So Virginia Supreme Court, do you really want to come in? And, you know, from the, from the Virginia Democrats perspective on some, you know, supposed that technicalities throw out this entire process because of, you know, these in the weeds things that the Republicans are raising, is that really what you want to do? And do you think that’s really the best use of the the court’s resources? And do you think that’s makes sense in terms of separations of power?” (That really explains the situation perfectly from the Democratic point of view. As Justin Timberlake’s Robin Gibb character responded to Jimmy Fallon’s Barry Gibb character in the hilarious SNL skits parodying the BeeGees, when asked, “Robin, do you have anything to add?” “No. No I don’t.” LOL)
- And the Republican argument essentially is: “if you look at the lower court’s opinion, they kind of have a list of like 10 things the Democrats did wrong. It’s like, you should have done this, you should have done that, you should have done this, you should have done that. So that’s kind of what the lower court is saying. The lower court is saying you messed up a bunch of things in the process. And so, yes, in theory, General Assembly passed this, the voters approved it, but it doesn’t really matter because you didn’t do all the procedural steps you needed to do in order to get this thing passed.” (Of course, Democrats will counter on each of these detailed points and argue that they didn’t do anything wrong, or at least not illegal or unconstitutional, but instead that they followed the plain language and intent of the Virginia constitution. We’ll see how the arguments are received on Monday.)
- “So one way or another, someone is going to be wrong, either the Democrats overestimated how strong their legal position is. And that would be a pretty dramatic result if the Virginia Supreme Court strikes down the referendum and says, actually, this whole thing is not going to happen. The other alternative is that the Virginia Supreme Court upholds the new maps, and then the Republicans are in a very difficult spot because They didn’t win at the ballot box. They didn’t win in the courts. And they’re going to have to deal with these new maps. And I think it’s going to be interesting to see what the incumbent Republican members of Congress do in that situation.” (Exactly – what will Republicans like Rob Wittman, John McGuire and Ben Cline do, given that they’ll be badly shit-outta-luck, and pretty much in hopeless positions politically speaking, if the VA Supreme Court upholds the YES victory in the redistricting referendum. Will the three of them just hang it up? Will any or all of them try to run for reelection anyway, even though they’ll pretty much have little-to-no chance of winning? Could we possibly even see a Republican primary of Rep. Morgan Griffith, maybe by Ben Cline or even John McGuire? Who know…but it will be fascinating to watch, assuming the new district lines actually take effect. Stay tuned...)
Finally, just to give an idea where Republicans’ heads are at on this, here’s former Virginia Attorney General Ken Cuccinelli, who’s about as far right as you can get, but also probably reflective of most Virginia Republicans at this point.
The “yes” vote has won Va’s redistricting referendum — but the legal fight is just beginning. Four Va Constitutional challenges are now teed up:
THREE challenges to the amendment process itself:
1️⃣ 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. A Tazewell County judge found this action “void, ab initio.”
2️⃣ 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.
3️⃣ 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.
Plus ONE challenge to the proposed maps:
4️⃣ Art. II, §6 requires that “every electoral district shall be composed of contiguous and compact territory.” The proposed congressional maps violate this contiguity requirement (rather badly).Next stop, court. Stay tuned.
Again, note that Democrats will argue that passage WAS valid, that there WAS an intervening election, etc. We’ll see what the court says.
