Virginia Supreme Court gerrymandering decision a rule-of-law victory
by L. Scott Lingamfelter · The Washington TimesOPINION:
We are blessed in Virginia to reside in the larger context of a constitutional republic. Our rights are protected by a representative system whereby the people elect legislators who govern us within the metes and bounds of our constitution.
We are also fortunate for the courts that guard against encroachments on those rights when the legislative or executive branch strips them away.
Indeed, we just witnessed such an intervention by the Supreme Court of Virginia. It nullified the recent referendum that would have wrongly reimposed partisan gerrymandering on Virginia, despite our 2020 amendment requiring nonpartisan redistricting.
In the majority opinion authored by Virginia Supreme Court Justice D. Arthur Kelsey, the court cited U.S. Supreme Court Chief Justice John Marshall’s advice in Marbury v. Madison: “It is emphatically the province and duty of the judicial department to say what the law is.”
Moreover, it reminded us that Marshall’s law professor, George Wythe, emphasized the duties of a court “to declare constitutional boundaries of political power” and summon “the courage to ‘fearlessly’ protect them.”
The Virginia Supreme Court did both exceedingly well.
It upended the plans of Virginia Democrats to defenestrate Virginia’s constitutional provision abolishing partisan redistricting and replacing it with one that would reinstate gerrymandering. To accomplish this, Democrats ignored the Virginia Constitution’s procedural requirement that the General Assembly must approve any amendment twice: once before the next general election and then again after that election.
The wisdom underlying this procedure was to deliberately slow the amendment process so that the voters would have an opportunity to signal their approval or disapproval of legislative candidates supporting controversial amendments, by possibly not reelecting them.
Advertisement Advertisement
The issue before the court was whether Democratic legislators had passed the proposed amendment before the intervening election. Republican legislators pointed out that voting in the 2025 general election began on Sept. 19 and ended on Nov. 4, Election Day.
Yet the General Assembly took its initial vote on the proposed constitutional amendment on Oct. 31, after more than 1.3 million votes — 40% of the entire vote — had already been cast in the election cycle.
The court agreed, concluding that the election isn’t simply a date on a calendar but rather a period that begins when people start voting early and ends on what we call Election Day.
In rejecting Democratic attorneys’ claim that elections begin with the first casting of early votes, the court settled on a precise definition to resolve the issue. “History confirms that ‘election’ includes both ballot casting and ballot receipt.”
Indeed, in the 63 prior constitutional amendments adopted since 1971, “The Commonwealth has identified none in which the General Assembly passed a proposed amendment after voting in the general election had already begun.”
Advertisement Advertisement
In essence, the court concluded, “The Commonwealth implicitly concedes that early voting is one of the combined actions of the election when it recognizes that early voting is ‘casting a ballot to be counted on Election Day.’”
In that regard, the court made clear that when citizens cast ballots early, “the durational term ‘election’ and the determinate term ‘Election Day’ fit together perfectly. In essence, what the ruling Democratic majority advocated, with the clear approval of Virginia Gov. Abigail Spanberger, amounted to “denying over 1.3 million Virginians their constitutional right to have a voice in the debate over whether their Constitution should be amended, thereby eroding one of the core rights that Article XII, Section 1 was intended to safeguard.”
Their final verdict was resounding. “For these reasons, we hold that the definition of ‘general election’ in Article XII, Section 1 describes the combined actions of voters casting ballots and officers of election receiving those votes and closing the polls on the last day of the election.”
It was a conclusion a blind Bartimaeus could have seen before he was miraculously healed.
Advertisement Advertisement
Despite a resounding defeat in Virginia, Democrats appealed to the U.S. Supreme Court, which rejected it. This move was a petulant act of intransigence in the face of sound legal reason.
As Justice Kelsey noted, “While the Commonwealth is free by its lights to do the right thing for the right reason, the Rule of Law requires that it be done the right way.”
Democrats did not, and the court’s decision was a frank and firm critique of calcified legislative minds more interested in attaining power than judiciously and legally employing it.
• L. Scott Lingamfelter is a retired U.S. Army colonel and combat veteran (1973-2001) and a former Republican member of the Virginia House of Delegates (2002-2018).
Advertisement Advertisement