The new districts, which could net Democrats four additional seats, won narrow voter approval last week. But a Republican legal challenge contends the General Assembly violated procedural rules by placing the constitutional amendment before voters to authorize the mid-decade redistricting. If the court agrees that lawmakers broke the rules, it could invalidate the amendment and render last week's statewide vote meaningless.
The Virginia court proceedings mark the latest twist in a national redistricting battle between Republicans and Democrats seeking an advantage in a November midterm election that will determine whether Republicans maintain their narrow majority in the U.S. House.
President Donald Trump kicked off a tit-for-tat round of gerrymandering last summer when he urged Texas Republicans to redraw districts to their favor in an attempt to win several additional House seats. That set off a chain reaction of similar moves in other states, leading to the voter approval last week of Virginia'snew map.
Next up is Florida, where Republican Gov. Ron DeSantis has proposed a congressional redistricting plan that could essentially cancel out Virginia's changes by giving Republicans an improved chance of winning additional seats. The redistricting is on the agenda for a spepcial session of the GOP-controlled Legislature beginning Tuesday.
Virginia arguments focus on what counts as an 'election'
During Monday's arguments, the Virginia Supreme Court focused on whether the new congressional districts should be invalidated because of the process used by lawmakers. The justices issued no immediate ruling.
Because the state’s redistricting commission was established by a voter-approved constitutional amendment, lawmakers had to propose an amendment to redraw the districts. That required approval of a resolution in two separate legislative sessions, with a state election sandwiched in between, to place the amendment on the ballot.
The legislature's first vote occurred last October — while early voting was underway but before it concluded on the day of the general election. Judicial questioning focused on whether that was too late, because early voting already had begun.
Attorney Matthew Seligman, who defended the legislature, argued that the “election” should be defined narrowly to mean the Tuesday of the general election. In that case, the legislature's first vote on the redistricting amendment occurred before the election and was constitutional, he told judges.
But an attorney arguing for the plaintiffs, Thomas McCarthy, said “election” means the entire period during which people can cast ballots, which lasts several weeks in Virginia. If that's the case, then the legislature's initial endorsement of the redistricting amendment came too late to comply with the state constitution, he said.
Attorneys argue over the rights of voters
The purpose of Virginia's two-step amendment process, with an intervening election, is so voters can know whether legislative candidates support or oppose a proposed constitutional amendment, McCarthy said.
He pointed to the case of Democratic voter Camilla Simon, one of the plaintiffs in the lawsuit alongside Republican state lawmakers, who cast an early vote last fall for Democratic Del. Rodney Willett. After she voted, Willett sponsored the Democratic redistricting amendment, and Simon wished she could have undone her vote, McCarthy said.
“None of these voters had any idea this was coming, and that’s not how this process is supposed to work,” McCarthy told the justices.
Those defending the Democratic redistricting plan also contend that the voters' will should be respected.
The people voted to ratify the constitutional amendment, “and the challengers are asking to overturn that democratic result,” Seligman told reporters after the arguments.
