RICHMOND — A circuit court judge in rural Tazewell County has ruled against the redistricting effort started by Virginia Democrats, declaring Tuesday that the process they used to create a proposed constitutional amendment is invalid.
Democrats immediately pledged to appeal and said they expect a referendum on the matter to go ahead this spring as planned.
“Nothing that happened today will dissuade us from continuing to move forward and put this matter directly to the voters,” the Democratic leadership of the state Senate and House of Delegates said in a joint statement.
In their own joint statement, two of the Republican leaders who brought the lawsuit — Sen. Ryan T. McDougle (Hanover) and Del. Terry G. Kilgore (Scott) — said the case “was never about partisanship. It was about process, fairness, and the simple principle that you cannot change the Constitution by ignoring the Constitution. The court made clear that elections matter, notice matters, and the rules apply to everyone — even those in power.”
With controlling majorities in the General Assembly, Democrats have pushed through a proposed amendment that would give lawmakers power to draw new congressional maps in time for this fall’s midterm elections. If passed by voters in a referendum scheduled for April 21, Democrats could create maps that give their party a 10-1 advantage in the state’s congressional delegation, rather than the current split of six Democrats and five Republicans.
Democrats, with backing from national party leaders, launched the effort in response to President Donald Trump’s encouraging of Republican states to create red-leaning districts to help the GOP retain control of the House of Representatives this fall. Texas and North Carolina have done so, while Virginia joins California and Maryland among blue states looking to respond in kind.
Democratic Congressional Campaign Committee executive director Julie Merz called Tuesday’s ruling a “rogue decision” and a “disappointing, but temporary setback” that will be overturned.
Virginia Republican leaders filed a lawsuit last fall in Tazewell County, in the deeply Republican southwestern corner of the state.
In Tuesday’s decision, Circuit Judge Jack S. Hurley Jr. wrote that his ruling “PROHIBITS the proposed amendment from being submitted to the voters for their consideration.”
He ruled against the amendment on three of the four grounds that Republicans had raised.
Although Hurley rejected an argument that Democrats had improperly convened a special legislative session last October to take up the matter, he agreed with the GOP that the rules of the special session — which had actually been called earlier to take up budget matters — did not allow for introducing the unrelated subject of redistricting without support from a two-thirds supermajority, which did not take place.
“This blatant abuse of power by a majority IGNORES their own rules and resolutions thereby trampling ANY and ALL procedural rights of the minority,” Hurley wrote.
The judge also ruled that the legislature’s initial vote on the proposed constitutional amendment was invalid because it took place while last fall’s House of Delegates elections were already underway. State law requires that a proposed constitutional amendment be passed by the General Assembly twice — once before a House of Delegates election and again after — before it can be put to voters in a statewide referendum.
Last year’s special session took place less than a week before the Nov. 4 election, but early voting had been underway since mid-September. Democrats argued that those votes were cast “early” — before the actual election — but the judge rejected that idea.
Hurley also ruled that the process violated a state law requiring that any proposed constitutional amendment be posted at county courthouses 90 days before an election. Democrats had argued that that was an archaic provision that was removed from the state constitution in 1971, and that the requirement had been overlooked in state code and was not in force.
Additionally, Hurley took aim at legislative efforts underway to negate the lawsuit. Democrats have been advancing a bill that would invalidate the 90-day requirement retroactively to 1971, and would require any lawsuit challenging redistricting to be heard in Richmond city circuit court.
Hurley ruled that those efforts violate the state constitution.
The Senate debated its version of the bill on Tuesday, with Sen. Mark D. Obenshain (R-Rockingham) arguing that the effort to retroactively change the state code to make it comply with actions already taken is “a clear admission that that is a violation of the law of the commonwealth of Virginia.”
But Senate Majority Leader Scott A. Surovell (D-Fairfax) said the language requiring court clerks to post proposed amendments 90 days before an election was an overlooked artifact of a time when people rode horses to the county courthouse to get the latest news. With no evidence that clerks in every county have complied with the outdated provision in the years since it was removed from the state constitution, every amendment passed since 1971 could be challenged in court unless the language is altered retroactively, Surovell said.
He and the other Democratic leaders said in their statement that it is Republicans who are “abusing the legal process in an attempt to sow confusion and block Virginians from voting. … We’re prepared for the next step, and voters — not politicians — will have the final say.”
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