Virginia Redistricting Fight Shifts to High Court After Vote

After voters in Virginia approved a mid-decade redistricting plan Tuesday that will give Democrats a big edge for U.S. House races, the battle has now shifted to the state’s highest court.

Yesterday, voters approved a constitutional amendment to redraw Virgina’s state congressional map, granting a likely 10-1 advantage for Democrats in future elections.

On Wednesday, however, a Tazewell County Circuit Court judge declared that Virginia cannot certify the results of Tuesday’s special election. Judge Jack Hurley ruled that the effort to redraw Virginia’s congressional map was illegal.

That ruling will likely be appealed to the Virginia Supreme Court, which is reviewing multiple legal challenges related to the election.

“They’re going to move very quickly,” Ken Cuccinelli II, former Virginia attorney general and chairman of the Election Transparency Initiative, told The Daily Signal. He expects the process to begin as soon as Thursday.

Cuccinelli said a legal brief is due Thursday that focuses “on several of the constitutional challenges to the process by which the amendment was brought forth.”

The main legal challenge Cuccinelli referenced is that the decision was “void, ab initio,” meaning it was invalid from the beginning. A judge found the approval to be legally null because the legislature approved the decision to move forward with the constitutional amendment during a meeting at which it was not legally allowed to vote.

That ruling was then appealed to the state Supreme Court, which allowed the election to continue while it reviewed the case.

The 90-Day Rule and “Restoring Fairness”

Separate cases out of Tazewell County are challenging other aspects of the legislature’s approval process.

Plaintiffs—the Republican National Committee, the National Republican Congressional Committee, and Virginia Republican Reps. Ben Cline and Morgan Griffith—argue that the 90-day rule between legislative approval and the start of voting was not followed and that the language on the ballot is unconstitutional.

The legislature approved the amendment in mid-January, and voting began in early March—well under 90 days.

Because the cases are similar and both originate in Tazewell County, Cuccinelli said they could be consolidated before the state Supreme Court. “That might shuffle the briefing schedule somewhat, push it back a little bit, so they can do everything at once,” he told The Daily Signal.

There are also multiple cases challenging the language used on the ballot, including challenges brought by Virginia Reps. John McGuire and Cline. However, Cuccinelli explained that there is no legal requirement that ballot language be “fair,” only that it be written in “plain English.”

“Don’t expect this to be central to the Va. Supreme Court’s resolution of the case,” he posted on social media.

Challenging the Maps

A third case challenges the maps themselves, which were drawn by the Democratic-controlled state legislature, and would shift Virginia’s congressional delegation from six Democrats and five Republicans to 10 Democrats and one Republican.

The Virginia Constitution requires state maps to be contiguous and compact, which the RNC is challenging in a separate case filed in Richmond.

Cuccinelli said the case “will go fast, but it’s really moot if any of the process challenges prevail. So, I’m not sure that the judge or the Supreme Court will feel as compelled to move as quickly on that one.”

Virginia Hasn’t Given Up

“The fight is far from over,” said Rep. Jen Kiggans, R-Va., one of the members whose district is expected to lean Democratic under the new map. Kiggans confirmed she will continue to run for reelection, even though the challenge has grown steeper.

NRCC Chairman Richard Hudson told POLITICO he believes Kiggans “can win either map” and hopes the Virginia Supreme Court “will step in and stop” the redistricting.

Other well-known Republicans also took aim at the process Democrats used to get a redistricting referendum before voters.

“Virginians deserve fair maps and respect for the rule of law, but as voters they have a right, clearly articulated by the Supreme Court in Coleman v. Pross, to vote on constitutional amendments only if they are placed on the ballot through a fair process. Virginians disenfranchised by today’s vote will have their day in court,” former Attorney General Jason Miyares said in response to Tuesday’s vote.

Miyares and former House Majority Leader Eric Cantor founded Virginians for Fair Maps to oppose the referendum.