Thomas: Can Virginians Count on a Simple Reading of the Law?

The Virginia Supreme Court on Monday heard arguments from Republican plaintiffs and Democrat defendants regarding the legality of the April 21 redistricting referendum.

The issue before the court is the process the General Assembly used to approve a special election for redrawing the commonwealth’s congressional districts.

The Supreme Court heard two challenges. The first case presented to justices was that the Virginia General Assembly wasn’t properly in a special session and Democrat state lawmakers added the constitutional amendment to the agenda without a two-thirds vote of the General Assembly.

The second was that the Virginia Constitution requires an intervening election to occur for the House of Delegates between the first and second passage of a proposed amendment.

One of the plaintiffs, apparently a Democrat voter who voted early in 2025, had been a supporter of the nonpartisan Virginia Redistricting Commission established in 2020, but had no idea a reversal was in the offing. Her representative in the House is the delegate who proposed the amendment, Henrico County Democratic Delegate Rodney Willett. She testified that had she known about it, she would have voted against Willett in 2025. Plaintiffs’ counsel Thomas McCarthy, when pressed by Virginia Supreme Court Justice Junius P. Fulton, noted that all of this was in a verified complaint, which means the plaintiff swears to the truth of it, and it was uncontested by the defendants.

Former Virginia Attorney General Ken Cuccinelli, the head of the Election Transparency Initiative, said on my radio show: “The position of the defendants was, well, the election for these purposes really just means Election Day. That was their argument. And I don’t know of a case anywhere in the country that supports that position. I think it’s the strongest constitutional challenge.”

I asked Cuccinelli about the impact the April 21 election results might have, and he said, “It was actually Justice [Wesley] Russell’s very first question of any justice in the argument. He asked, ‘Does the yes vote matter at all?’ He asked this of the counsel for Virginia. So, the defendants and Richard Hawkins, on behalf of the solicitor general’s office of Virginia, conceded that the vote is irrelevant to the legal questions at issue. “

He went on to tell me that he expects the Supreme Court to issue its ruling before May 15.

There is concern that the justices could side with the General Assembly because that is who appointed them. Virginia Supreme Court justices are appointed for 12-year terms, and the only two whose terms are remotely close to expiring are Justice Arthur Kelsey, in 2027, and Stephen McCullough, in 2028. So that doesn’t appear to be an issue.

However, there was a time when legal issues like this could be adjudicated in a cut-and-dry manner. But in an age when progressive prosecutors don’t press charges against people who steal less than $1,000, and where police are told not to arrest people in possession of illegal drugs, knowing what is legal and what isn’t simply by reading the law can’t be counted on anymore.