On Monday this week — only six days after Virginia’s gerrymandering referendum — the Virginia Supreme Court heard oral arguments on the alleged constitutional and statutory offenses Democrats in Virginia’s General Assembly committed in 2025 in bringing their attempt to amend Virginia’s constitution to get rid of our bipartisan redistricting commission. There is a second case on appeal to the Virginia Supreme Court that addresses Democrats’ alleged 2026 violations of Virginia’s constitution and laws. Finally, there is a third case, still in trial court in Richmond, addressing whether the Democrats’ proposed new map is so extremely gerrymandered that it violates Virginia’s constitution. If the Virginia Supreme Court throws out the referendum, the map case will be mooted and dismissed.
Recognizing how important it is to have maps in place, the Virginia Supreme Court has moved with a speed I have never before observed. Two days after last week’s referendum, briefs were filed, and four days after that, oral arguments were held. One can only assume that the Court will issue a ruling at a similar pace.
As a 30+ year litigator, it’s important to realize how little you can often glean from oral argument. In Monday’s hearing, only three of the seven justices asked anything, and most of that came from just two: Justices Russell and McCullough. A note on these two: Most people will observe that they are among the more conservative justices. That is true, but both of them also have a rare depth of experience dating back before they became judges, more than a decade ago, in interpreting and litigating Virginia state constitutional issues. There are very few state constitutional experts — they are both such experts in Virginia.
Notably, current Democrat Virginia Attorney General Jay Jones’ public comments defending the referendum since the three-point win by the “yes” folks have exclusively focused on the importance of the vote. “The people have spoken,” and therefore the court should not invalidate the referendum. No reference to the constitution or laws of Virginia, just raw mobocracy. So, it was almost hilarious to hear the very first question to Jones’ own lawyer, along the lines of “counsel, does the outcome of last week’s vote have any bearing on the legal issues before us today?” Answer: “No.”
Jones’ own lawyer gutted his public posturing with his answer to the very first question asked in oral argument. Ouch.
A little election law history in Virginia: the last time the Democrats controlled Virginia’s state House, Senate, and Governorship, they gave Virginia 45-day elections. It is thus ironic that early voting is causing the Democrats’ biggest problems with their bum-rushed attempt to amend Virginia’s constitution to gerrymander the state into oblivion.
To amend Virginia’s constitution, the General Assembly must pass a proposed amendment twice — once on each side of an intervening election. Simple enough, right? Not when you’re in a race to rewrite maps to “get Trump” in the midterms.
The Democrats didn’t pass their gerrymandering amendment for the first time until Halloween last year — during the election that gave us Governor Abigail Spanberger. Their problem? Voting began six weeks earlier, on September 19, 2025. Over one million Virginians had already voted by Halloween. The lawyer for the Democrats’ response? Too dang bad. Seriously. Jones’ lawyer said that early voters vote early at their own risk, basically stating if there’s an October surprise, too bad for you, you shouldn’t have voted early.
Isn’t this the party that raises early voting and mail-in voting to a religious-like level? Aren’t you an automatic racist if you oppose the nobility of early voting?
And now that the 45-day election stands in the way of their power grab, they are throwing those voters under the bus. One of the plaintiffs in the case is a Democrat early voter who strongly supported the bipartisan redistricting amendment that passed just over five years ago by a 2-to-1 margin. Not only that, her own delegate proposed the gerrymandering amendment to undo the bipartisan redistricting. She had no idea they might do this, and if she had known, she would have voted against her delegate.
The Virginia attorney general, who has been spewing pablum about how much he wants to protect voting, doesn’t care about this woman’s vote, nor the other million+ voters in 2025 who voted, having no idea of the power play that was about to be rammed through by the Democrats.
Considering the more lenient approach taken on the other two issues during oral argument — namely, whether the Democrat-controlled General Assembly could shift the focus of its special session from the state budget to adding a constitutional amendment unexpectedly, and whether Virginia’s law requiring court clerks to post potential constitutional amendments 90 days before an election was violated (which was impossible here since the amendment didn’t exist until near the end of the 2025 election) — I anticipate that this Court will swiftly declare the referendum unconstitutional.
***
Ken Cuccinelli is the former Virginia attorney general and former acting deputy secretary of the Department of Homeland Security.
