Former State AG Explains Why Virginia’s Redistricting Plot Won’t Survive the Courts

Editor’s Note: The Supreme Court of Virginia is now weighing the recently passed redistricting referendum that was designed by the Democrat-led state government to swipe four of the five U.S. congressional seats held by Republicans in the purple state. If allowed to stand, congressional representation could go from a 6–5 split to 10–1. The Daily Signal’s Virginia correspondent Joe Thomas sat down with the Commonwealth’s former attorney general, Ken Cuccinelli, to discuss the legal future of the referendum.

This transcript has been slightly edited for clarity.

Joe Thomas: He is the former acting secretary of the Department of Homeland Security, former attorney general of the Commonwealth of Virginia, state senator, and now just dad and granddad and the head of the Election Transparency Initiative. Can’t imagine what we would have. He’s getting, you know, he’s all over the place.

He was on Newsmax, he’s on CNN, even NBC has found Ken Cuccinelli’s phone number this morning. So, Ken, good morning, thank you so much for taking some time out with us. How are you doing, first and foremost?

Ken Cuccinelli: But I hadn’t been on with Joe Thomas yet, so this is the topper.

Thomas: Well, you know, I’m going to cede control to your and my dear friend Christopher Horner, the bestselling author of “Red Hot Lies.” And, you know, just recovering from his Earth Day celebrations yesterday, he texted me and said, “Please ask Ken to recount the history of how the Virginia courts treated these kind of cases before Tuesday. That should help answer a lot of the confusion that I’m reading.” Now, if he’s reading stuff online, he’s getting all sorts of things about that.

Cuccinelli: Chris Horner is a very smart character.

Thomas: Yes, he is.

Cuccinelli: And when the Virginia Supreme Court sort of froze the cases in February, or case at that time, people thought they were ducking. In fact, there is precedent from well over 100 years ago in Virginia that the vote on a referendum is part of the legislative process. It’s like the governor signing a bill.

And while I’m sitting here waiting to sue in the assault weapons ban, I can’t do it until there’s final action taken on the bill by the governor in this case. And the vote by the people in the referendum is analogous to the governor signing a bill. So, the court can’t act until the legislative process is complete. 

Well, that was completed on Tuesday. And now it’s legal game on. And had it been defeated, of course, there’d be nothing for the court to do.

Now there are three cases that are really going to be decided by the Supreme Court of Virginia, not the U.S. Supreme Court, folks. Hear me clearly. Supreme Court of Virginia, SCOVA, not SCOTUS.

Thomas: So, the Judge [Jack] Hurley in Tazewell County issued an injunction yesterday to keep the Board of Elections from certifying the election results. And I pointed out that this is one of those that’ll glaze your eyes over. But it’s important because that would have given the Supreme Court of Virginia an opportunity to say, “Well, we can’t overturn the official results of an election. So, we’re just going to kick the can back down because they’ve already certified it.” To me, that’s how I read the tea leaves on that ruling yesterday.

Am I wrong?

Cuccinelli: Well, he certainly seems to be pushing things along. And he did enjoin the certification of the election. We will see what the Supreme Court does in that regard. 

You know, they may leave it in place. They may leave his injunction in place. But they’re moving on an expedited basis for the case they have in front of them.

Joe, there’s four constitutional challenges, all state constitutional challenges. Three of them relate to the referendum. And one relates to just how badly gerrymandered the map is.

That’s easy for people to understand. We have a compactness and contiguity requirement in our Constitution. But the court won’t get to the map until it resolves the three process challenges.

And they’re all such brazen violations of the state constitution. I don’t ever think they’re going to get to the map. So, we’ll see how this plays out.

I believe briefs are due today in the Supreme Court. And I understand they’re having oral argument on Monday. I haven’t seen an announcement on their website, but I understand that is the schedule for the first two constitutional challenges.

They both relate to the first passage back on Halloween. So, first passage happened in what the Democrats allege was a special session. Well, that special session was called in May of 2024 to deal with the budget.

If you want to add a new topic, you have to have a vote of the Legislature, and it needs to be a two-thirds vote. Well, that didn’t happen. So, that’s constitutional violation No. 1.

They also violated their own joint resolution, the rules the Legislature sets up for its own session. And that’s No. 1. That’s in front of the Supreme Court already.

No. 2 is that—like many states—Virginia requires a proposed amendment to be passed twice by the General Assembly before it goes to the people on either side of an intervening state election.

Thomas: This is my favorite part of this.

Cuccinelli: Yeah, it’s my favorite part too, actually.

So, what they want to count as the intervening election is the 2025 election. You’ll recall they passed this on Halloween last year and voting started Sept. 19. Over a million people had already voted in the election.

And the delicious part of this really from a cathartic standpoint is that it’s the Democrats, these same Democrats, who gave us this 45-day election. There’s no reason ever anywhere for a 45-day election. And yet now they’re going to get hoisted on their own little petard because they couldn’t move fast enough and get their proposed amendment passed prior to this election.

Thomas: Well, to be fair, I mean, they had to wait until Eric Holder’s check cleared there. But, you know, this is the interesting part of this. And I want to investigate this.

Ken Cuccinelli is on with me from the Election Transparency Initiative. Ken, the part that I find most delicious in this is now their argument is that no, Election Day is only the day we tabulate the votes. All the other votes are just procedural days.

You weren’t really voting when you thought you were voting because we didn’t count it until election day. Do you think that has any legs to stand on, even in front of the most liberal justice? 

Cuccinelli: No, I think this could be 7-0. 

Thomas: Wow.

Cuccinelli: I think they could lose this 7-0. Because it’s so brazen and blatant that even any judge from the Left who might be tempted to be politically helpful couldn’t stomach this for the very reason you cite. Look, there have been arguments sort of like this made at the federal level for 30 years, not quite 30 years, and they have always and everywhere been rejected.

The similar arguments what the Democrats are making here. Now, that doesn’t, none of those are binding on Virginia. This is a Virginia constitutional question.

But there’s no definition. It’s just plain English. So, regular folks, you don’t need to be a lawyer, can just read this provision, decide what it means.

And that’s largely how the Supreme Court’s going to decide it. They’ll apply rules of interpretation, of course, but those aren’t going to help the Democrats here.

Thomas: I think that’s what makes the Democrats so mad is that it’s pretty obvious to everybody. That’s why they had to spend $70 million to eke out a one percentage point victory at the ballot box. 

Cuccinelli: Yeah, it took them a 3- or 4-to-1 spending advantage, 10-to-1 at the beginning, to eke out a two-to-three-point overturning of a 2-to-1 constitutional amendment vote by the people of Virginia, a bipartisan redistricting commission that I was involved in that also, had tried to get it for 15 years. And if you look at our map, setting aside who you want to win and lose, our maps match the political play out of voting as a general matter in Virginia, perhaps closer than any other state in the country right now.

We literally are going to go from the best to the worst. 

Thomas: Right, yeah. Somebody had, I don’t know if it was Politico or somebody had listed us as the best maps congressionally.

Now, I’m going to ask you to put your political hat on before we have to let you go. Which is worse for Virginia Republicans, that the maps are allowed to stand and you go at it, because I did the math, if you use the 2021 election as a template, Republicans actually pick up a seat in this scenario, or …

Cuccinelli: You mean Republicans end up 6-5?

Thomas: Yeah, if you use Glenn Youngkin’s election as a template, not Abigail Spanberger’s. That being said, there are a lot of people who are gnashing teeth over a Supreme Court ruling that’s just going to be turned into campaign fodder that the Democrats are going to use as kindling to burn, you know, down Republican candidates in November anyway, even in the old districts.

Just as somebody who’s won a few elections in your life, which do you think holds more water? 

Cuccinelli: So, politically, in a midterm year with a Republican president who is good at many things, but there’s nothing he’s better at than pissing off his opponents. I mean, they ran this whole campaign here Tuesday against him, and he makes that easy. Let’s just face it. He does a lot of great things, but he really motivates the opposition, and this midterm year is going to be very hard for Republicans.

This is not going to be a Youngkin-looking map. I wish it was, but it’s just not very realistic.

Thomas: Well, Ken, it’s…

Cuccinelli: We do, but the court shouldn’t care about any of this, right? They should just care about, here’s the Constitution.

Was it obeyed? And the answer here is blatantly and brazenly, no, it was violated. 

Thomas: Electiontransparency.org. I’m going to leave you with this one, Ken. Isn’t it fun listening to Democrats talk about activist judges? 

Cuccinelli: Yeah, I did get a kick out of that.

Thomas: Yes. We have to find our fun where we can. Bless you, sir. You have a great morning, and thanks for taking some time out with us today. 

Cuccinelli: Always good to talk to you, Joe.

Thomas: And please, if you can, contribute electiontransparency.org.