Public hearings concerning Virginia’s special election on redistricting are set to start on Monday. The outcome will hinge on whether the early voting period, which lasts 45 days, is applicable to the ongoing election, impacting four additional Democratic House seats.
Ken Cuccinelli, the former Attorney General of Virginia and current director of the Election Transparency Initiative, highlighted ongoing legal disputes in the state’s Supreme Court over allegations that current congressional maps have been gerrymandered to benefit Democrats as midterm elections approach.
Cuccinelli noted that there are four major constitutional challenges at play. These include doubts about how the amendment was passed and two statutory challenges that advocate for invalidating the vote. Three issues poised for discussion pertained to the year 2025, while additional inquiries for 2026 will follow depending on the court’s decision about the special election.
The crux of the 2025 argument, which Cuccinelli considers the most compelling, is based on the idea that early voting meant the General Assembly’s amendment approval fell within the election cycle. According to Article 12 of the state constitution, the amendment must receive two approvals from the General Assembly. This was only accomplished on October 31, just days before election day, and after many voters had already participated in early voting. Cuccinelli argued that this could render the General Assembly’s vote invalid since it coincided with the election period.
“The Democratic-led General Assembly acted swiftly, catching many by surprise,” Cuccinelli remarked, noting that at this point in Virginia’s election cycle, approximately a million people had already cast their votes.
In defense, Democratic Party lawyers asserted that the process conformed to constitutional guidelines. They argued that, while some votes had been cast before the General Assembly made its decision, those ballots were not counted until the actual election day.
Justice Wesley Russell pressed Democratic lawyer Matthew Seligman on this stance, questioning its implications. “Doesn’t this assume all votes for every position are cast in advance of the election even starting?” to which Seligman replied, “Yes, sir.”
The Republican Party expressed concern that the recently proposed amendment might have influenced voter behavior. However, Seligman suggested voters understood the risks associated with casting early ballots.
On Monday, a statutory challenge was raised, asserting that specific legal requirements necessitate the court clerk to file amendments at least 90 days prior to election day. Cuccinelli pointed out that this requirement likely could not have been met since the amendment was introduced during the ongoing election phase.
If these challenges are dismissed, further arguments regarding early voting could emerge. Cuccinelli mentioned a potential infringement of Article 12, as it mandates that voters must have at least 90 days to consider amendments after the General Assembly reconvenes. The early voting period began just 45 days before the April 21 election, which, Cuccinelli argued, did not satisfy this requirement.
Democrats have been actively encouraging early voting in Virginia, even when the 90-day timeline had not yet been fulfilled. Dan Gottlieb, a spokesperson for Virginia for Fair Elections, noted that their efforts led to unprecedented early voting turnout.
Virginia’s governor, Abigail Spanberger, also shared images promoting early voting, urging residents to participate ahead of election day in April.
Cuccinelli suggested that another argument could reach the Supreme Court, focusing on the amendment’s phrasing based on state rules for clarity, which he claims are misleading. He labeled the amendment as a temporary fix purportedly aimed at “restoring fairness” in future elections.
Additionally, the redistricting map itself is under scrutiny because Article 2 mandates that electoral districts need to be contiguous and compact. Cuccinelli believes the Supreme Court won’t weigh in on the map’s constitutionality unless the other challenges are resolved against the legitimacy of the vote.
The speed of the court proceedings has surprised Cuccinelli, who expects a ruling by the end of May. Meanwhile, it’s anticipated that Democrats will campaign as if the amendment will succeed, while Republicans will stick to current district configurations.
No stay order has been issued by the court yet, meaning the proposed amendment remains active until a decision is made.
Cuccinelli stressed that if the ruling favors Republicans, it would deal a significant setback to Democrats, who are currently outspending their opponents at a three-to-one ratio. Yet, Attorney General Jay Jones expressed confidence that the amendment should pass in line with the people’s will, though Cuccinelli pointed out that campaign spending or election outcomes were not central to Monday’s discussions.
