WASHINGTON — Democrats faced tough questioning before the Virginia Supreme Court on Monday during oral arguments on a redistricting referendum that narrowly passed last week, though most of the justices were oddly quiet.
Republicans have challenged the referendum, which paved the way for the Dems to pick up as many as four local congressional seats — potentially leaving them with a 10-to-one margin over GOPers — arguing that the Democratic-led General Assembly flouted procedural rules to get it on the ballot.
A constitutional amendment was needed to put it to voters — and state lawmakers have to approve a resolution in two consecutive legislative sessions, with an election in between, to do so.
Democrats claimed they met that requirment thanks partly to a special session last year that they contend was left open from 2024 and resumed again in the normal session in 2025. Republicans are arguing that such a special session doesn’t count as two sessions.
Additionally, the state legislature’s first vote on the proposed amendment took place in October, while early voting in the off-year election was still ongoing, so there were no two separate sessions with an election in between as required, the GOPers said.
The lower courts have been skeptical about whether Democrats complied with the procedures.
But the Democrats’ lawyer, Matthew Seligman, argued to the state’s high court, “The General Assembly complied with every step that the Constitution requires.
“The circuit court attempted to interfere with the democratic process by halting it,” he said. “The challengers here now try to overturn the result of that democratic process.”
Right off the bat, a justice dismissed Seligman’s argument about the people of Virginia deciding the referendum and underscored the irregularities of the process.
The other justices who asked questions largely pushed Seligman over tougher procedural issues and generally had easier queries for the GOP’s lawyer
Notably, fewer than half of the state’s seven high court justices actually asked questions during oral arguments.
Another procedural issue raised involved the General Assembly neglecting to publish the proposed amendment 90 days in advance, then retroactively repealing that regulation.
“There are lots of voters across the Commonwealth who are not totally educated on everything going on in Richmond, and they need time,” contended Thomas McCarthy, the lawyer repping the Republicans.
“The Commonwealth needs time for the whole thing to be aired out,” he said of the situation — which Republican National Committee Chairman Joe Gruters has called “a blatant power grab.”
Democrats argued that the will of the voters shouldn’t be tossed out on technicalities. They’ve also contended that the Virginia Supreme Court shouldn’t be weighing in on legislative rules.
The referendum needed to temporarily allow the state legislature to redraw congressional districts instead of the constitutionally mandated bipartisan commission was approved in a 51.6% to 48.4% vote.
Virginia currently has six Democrats and five Republicans in its congressional delegation. The state legislature’s new map would create favorable conditions for a 10-1 split in favor of the Dems, though that’s not guaranteed.
It is very rare for courts to throw out a referendum result.
