The Virginia Supreme Court heard oral arguments Monday on the legality of a constitutional amendment voters approved last week that allows Democrats to implement a more favorable congressional map ahead of the midterm elections.
Attorneys for the Democrats in the case were peppered with tough questions by the justices, signaling some skepticism of their arguments.
Republicans have challenged the process in several court cases, arguing that the Democratic-controlled legislature made procedural errors in putting the amendment on the ballot, which in turn invalidates the results of Tuesday’s special election.
To amend the constitution, lawmakers must pass an amendment in two consecutive legislative sessions with an election in between. Republicans have argued that Democrats first passed the amendment when early voting had already begun ahead of Virginia’s 2025 elections, meaning they failed to meet that requirement.
Democrats have said that Election Day itself, not the start of early voting, is the key date and that voters had plenty of time to educate themselves on the issue.
“If we’re talking about the purpose of protecting the people’s vote and protecting the people’s ability to weigh in, then I feel like it would be patently unfair to override the people’s vote because of a concern that they had not gotten the opportunity to voice their opinion months earlier,” Virginia Solicitor General Tillman Breckenridge said in court.
“What is your position — your client’s position — regarding a constitutional amendment that is adopted at 6 p.m. on Election Day with an hour left at the polls? Is that the next general, is that still the next general election?” one justice asked.
Breckenridge said the state’s position is that the amendment must come before Election Day, not on it.
Earlier this year, the Virginia Supreme Court had permitted the special election to take place, but reserved the right to rule on the merits of the case at a later date. Voters approved the redistricting referendum by 3 points.
Virginia Democrats pursued a constitutional amendment to temporarily bypass a bipartisan commission that controls the redistricting process in the state. Democrats’ redrawn map could result in the party representing 10 of Virginia’s 11 congressional districts after the November midterms, up from the current six.
The plan came in response to President Donald Trump’s urging of GOP-led states to redraw their maps to shore up the party’s narrow House majority.
Virginia’s entrance into the redistricting wars last fall surprised many, as it took years for the state to use the same constitutional amendment process to form a bipartisan redistricting commission in 2020. State lawmakers also reopened an existing special legislative session to first propose the amendment.
During Monday’s arguments, justices pressed Democrats on whether a special session could be reopened at any time. Democrats argued that the Supreme Court had no jurisdiction in enforcing legislative rules and that special sessions do not last past the terms of the sitting lawmakers.
Conservatives celebrated the tough line of questioning.
“Today’s oral argument was promising. The Virginia Supreme Court appeared ready to defend the rule of law by upholding the Circuit Court and preventing the implementation of these highly gerrymandered, partisan maps,” said Jason Snead, executive director of the Honest Elections Project Action, which opposed the redistricting referendum.
Supporters of the amendment said Republicans are attempting to overrule voters’ decision from last week’s election.
“More than three million Virginians voted in a free a fair election. Republicans lost — and are now trying to throw out the will of Virginians in court,” Virginians for Fair Elections spokesperson Dan Gottlieb said in a statement.
The White House had hoped a mid-decade redistricting fight would give their party a major boost heading into the midterms, but so far the result has been closer to a wash between the two parties.
Republicans are making another push in Florida, with Gov. Ron DeSantis releasing a proposal Monday that would create four additional Republican-leaning seats.
If that map passes in a special legislative session this week and Virginia’s top court signs off on the state’s redrawn congressional boundaries, Republicans would be in position to net as many as 13 new seats compared to 10 for the Democrats following the redistricting back-and-forth.
