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WASHINGTON — During a session filled with pointed inquiries on Monday, the Virginia Supreme Court examined the controversial redistricting referendum that narrowly passed the previous week. Although the Democratic representatives faced probing questions, the majority of justices remained unusually silent throughout the proceedings.
The referendum, which could potentially grant Democrats up to four additional congressional seats, is being contested by Republicans. They claim it might disrupt the balance, potentially giving Democrats a significant 10-to-one advantage over Republicans. The GOP argues that the Democratic-controlled General Assembly bypassed proper procedural protocols to secure the referendum’s placement on the ballot.
For the referendum to be presented to voters, it required a constitutional amendment. This amendment necessitates approval from state lawmakers in two consecutive legislative sessions, with an election conducted in between these sessions.
In defense, Democrats argued they complied with this requirement, partly citing a special session from last year. They claim this session was technically left open from 2024 and resumed during the regular session in 2025, thus fulfilling the two-session mandate. However, Republicans counter that such a special session does not equate to two separate sessions as stipulated.
Moreover, Republicans pointed out that the state legislature’s initial vote on the proposed amendment occurred in October, during the ongoing early voting for the off-year election. This timing, they assert, did not allow for the two distinct sessions with an election in between, as required by the rules.
The lower courts have been skeptical about whether Democrats complied with the procedures.
But the Democrats’ lawyer, Matthew Seligman, argued to the state’s high court, “The General Assembly complied with every step that the Constitution requires.
“The circuit court attempted to interfere with the democratic process by halting it,” he said. “The challengers here now try to overturn the result of that democratic process.”
Right off the bat, a justice dismissed Seligman’s argument about the people of Virginia deciding the referendum and underscored the irregularities of the process.
The other justices who asked questions largely pushed Seligman over tougher procedural issues and generally had easier queries for the GOP’s lawyer
Notably, fewer than half of the state’s seven high court justices actually asked questions during oral arguments.
Another procedural issue raised involved the General Assembly neglecting to publish the proposed amendment 90 days in advance, then retroactively repealing that regulation.
“There are lots of voters across the Commonwealth who are not totally educated on everything going on in Richmond, and they need time,” contended Thomas McCarthy, the lawyer repping the Republicans.
“The Commonwealth needs time for the whole thing to be aired out,” he said of the situation — which Republican National Committee Chairman Joe Gruters has called “a blatant power grab.”
Democrats argued that the will of the voters shouldn’t be tossed out on technicalities. They’ve also contended that the Virginia Supreme Court shouldn’t be weighing in on legislative rules.
The referendum needed to temporarily allow the state legislature to redraw congressional districts instead of the constitutionally mandated bipartisan commission was approved in a 51.6% to 48.4% vote.
Virginia currently has six Democrats and five Republicans in its congressional delegation. The state legislature’s new map would create favorable conditions for a 10-1 split in favor of the Dems, though that’s not guaranteed.
It is very rare for courts to throw out a referendum result.