Virginia Supreme Court Denies Emergency Stay to Certify Redistricting Vote
Tazewell County Circuit Court Judge Jack Hurley blocked Virginia from certifying the results, finding that “the referendum violated several provisions of the state constitution,” as Elizabeth wrote last week.
The Virginia Supreme Court denied Attorney General Jay Jones’s request for an emergency stay on a lower court ruling blocking the state from redistricting after the referendum passed.
Virginia Delegate Wren Williams wrote on X:
BREAKING: The Supreme Court of Virginia has denied the Attorney General’s Motion for Emergency Stay in RNC v. Koski – the one where he didn’t quote the ballot language.
One sentence. No dissent. No partial relief.
“Upon consideration whereof, the Court denies the motion.”
What this means in plain terms:
Jay Jones’ outside counsel from California asked the Court to allow the election process to proceed pending the rulings on the merits of the gerrymandering cases.
The Court said “no.” This stops the election from being certified for now.
The same Supreme Court that allowed the referendum to go forward in March, so voters could be heard, has now declined to override a final judgment finding the constitutional amendment process defective. Strong signal that process matters in Virginia.
The Attorney General asked the Court of Virginia to set aside a final order that exposed a ballot question he would not quote, an Article XII timeline he had to redefine, and a 1912 case that did not say what he needed it to say.
The Supreme Court said “no.”
The merits appeal continues. I will keep you posted as this develops.
🚨 BREAKING: The Supreme Court of Virginia has denied the Attorney General’s Motion for Emergency Stay in RNC v. Koski – the one where he didn’t quote the ballot language.
One sentence. No dissent. No partial relief.
“Upon consideration whereof, the Court denies the motion.”… pic.twitter.com/lr2gPAosZO
— Wren Williams (@WrenWilliamsVA) April 28, 2026
Virginia voters narrowly approved a new congressional map, which would give Democrats a 10-1 advantage in the House of Representatives.
Tazewell County Circuit Court Judge Jack Hurley blocked Virginia from certifying the results, finding that “the referendum violated several provisions of the state constitution,” as Elizabeth wrote last week.
Hurley had major problems with the wording of the question on the ballot:
He was especially critical of how the question was presented to voters, calling it “flagrantly misleading.” He took particular issue with its portrayal of the new map as restoring fairness in upcoming elections, stating that this phrasing “did not accurately describe the proposed amendment.”
Should the Constitution of Virginia be amended to allow the General Assembly to temporarily adopt new congressional districts to restore fairness in the upcoming elections, while ensuring Virginia’s standard redistricting process resumes for all future redistricting after the 2030 census?
Jones immediately filed an appeal.
Imagine if the GOP put in the effort to fight against the referendum. The map passed with 51.5% of the vote despite the Democratic Party outspending the GOP by $56 million to $25 million.
The map barely passed. Maybe the GOP should pay attention.
[Featured image via YouTube]
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Comments
Excellent news, much better than I expected.
This is the same supreme court that twice overrode the same judge’s injunctions to stop the referendum. Because of that I expected that it would also override his injunction to stop the certification, regardless of how it eventually decides on the merits of the case.
The fact that this time it allowed the injunction to stand while it considers the merits tells me that it’s seriously considering upholding the judge’s decision and striking the referendum down. That doesn’t mean it will do so, but at least it’s seriously considering it, which is good.
The question of whether the language of the referendum was misleading is more complicated than it appears. There’s a semi-plausible argument for upholding the language, but in the end I don’t think it works.
The obvious problem that people raise is that it seems odd to call going from a 6-5 map to a 10-1 map “restoring fairness”. But that objection depends on the context of that fairness being limited to the composition of the VA delegation.
The proposition put to the voters was that the Republican gerrymanders in Texas, Missouri, and elsewhere were “unfair” in some sense, and therefore Virginia gerrymandering the other direction would go some way to “restoring fairness” in the overall result.
It would take away from Republicans the advantage they had unfairly seized in those states, and restore to Democrats the loss that had been unfairly inflicted on them.
The problem with that argument is that it assumes all voters have bothered to educate themselves in advance on what a measure is about, so they’re not really influenced by the language of the question. And that those who are minimally engaged simply take a party’s advice on how to vote, and don’t even bother reading the language; they just vote “Yes on A, C, and D, No on B”, or whatever it is their party has advised.
And yes, there are many, perhaps a majority, of voters who fall into one of those two categories, but there are also a lot of minimally engaged voters who vote because they feel it’s the right thing to do, but they don’t really know what the issues are, so they read the language and make their minds up on the spot. And such voters can be expected to see “restore fairness” and think “Well, of course we must restore fairness, who could be against that?”
If there were no such voters then the law wouldn’t bother regulating the language on the ballot. For the first two categories of voters no language at all is necessary. Just call it by a letter or number and let people vote blindly, based on their previous research or on their party’s how-to-vote card. If you don’t know what “Proposition 43” is, don’t vote on it. If the law specifies that there must be language and it must not be misleading, it must be catering for the third category of voter who is actually guided by that language, so the Dems’ argument collapses.
I would think the amendment would have to have a straightforward VA-centric rationale for the “restoration of fairness” as it applies to the state itself and not to what is happening in other states. The state legislature of VA cannot assume that its citizens will automatically inform themselves of the current events in other states. Therefore, the ballot language needs to be explicitly posited to voters as to how it will restore fairness in upcoming elections, especially since the proposed remedy for doing so is the opposite of balancing the districts within the state’s borders.
It’s not really all that complicated. It’s flagrantly misleading. It’s a textbook example of something flagrantly misleading. It would be difficult to imagine something more flagrantly misleading. I could note that Democrats always go too far, but a hyper partisan power grab like this is pretty much by definition “too far.”
You’re mistaken, and I just got through explaining why. Did you bother reading it? Because you haven’t given one argument against it. The wording may be misleading, but it’s not flagrantly so.
It just depends on what you think is “fair”. Dems think their map is “fairer” than the one it replaces, because it compensates them for the seats the Reps “unfairly” took from them in other states. The question is how each voter would have understood it, and voters are all different, so it’s impossible to have a definitive answer.
If you can argue before a court, with a straight face, that a proposed redistricting that distorts the VA map into a democrat rorschach test and relegates the entire republican base to one of the new 10 malformed distorts can be properly described as “fair” rather than grossly misleading and inaccurate, then you should offer your services to the VA AG
It was described as “restoring fairness”. If one accepts the premise that the Republicans grabbing more seats in Texas was unfair, then it follows that the Dems grabbing seats in Caliifornia or Virginia restores the status quo ante, and therefore restores whatever fairness previously existed.
And if the parties were reversed I guarantee that you would be making the same argument. In fact everyone who’s now encouraging Florida to grab more seats in response is essentially making that argument — unless, like me, they maintain that fairness has nothing to do with any of this, it’s politics and it’s not meant to be “fair”.
It is no answer, Milhouse, to the VA constitutional requirements that language be accurate and not misleading to claim that there is an argument in the abstract that the measure is “restoring fairness” according to some subjective characterization that favors the biases of the proponents. I’m sure many of those same hyper partisan advocates believe President Trump is a dictator and they’re simply restoring democracy. That does not accurately describe anything but their own self serving agenda.
Concise, it is an answer. Fairness is inherently subjective, and it is perfectly fair to correct an unfair power grab in one place by giving the other side an equal advantage in another place. If you think that Republicans in Florida should grab as many seats as they can because Democrats did it in Virginia, then you are making exactly the same argument. If you think otherwise, please explain how you think the two arguments are different.
Me, I say fairness has nothing to do with it, this is politics and both parties are entitled to try to grab as much as they lawfully can. Florida Republicans should do whatever their state’s constitution allows them to do, regardless of whatever Democrats have done elsewhere. I was for the Texas redistribution, even though the Dems hadn’t yet done anything “wrong”.
And we’re going in circles, Milhouse. As noted above and in other words, silly biased Democrat campaign slogan rhetoric is inherently inaccurate and misleading. I would have thought you were old enough to understand this by now.
This is just another example of progressive ends justifying the means. To wit, if Black people were formerly treated unfairly by White people, then burdening White people unfairly with reparations is only fair.
If we were talking about the same people then it would be fair. That’s exactly what courts do all the time. A cheated B out of $100K, so now B can take $100K from A, and that restores fairness.
It just depends on what you think is “fair”.
And that is why it’s misleading. It’s a subjective standard – which isn’t supposed to be the basis of law.
The referendum’s alleged purpose is also strange in that it purports to “restore fairness” for two years, after which the state apparently will revert to its fundamentally unfair system. Whoever selected the referendum’s language should have his head examined. (Maybe we are simply witnessing desperation.)
What are you talking about, two years? This grab lasts until 2031, i.e. three elections, because in 2031 the entire system does reset itself. In 2031 there is a reapportionment in every state, and all “unfair” advantages that any state gave one party or the other automatically reset to zero. At that time each state apportions in its own way, and that’s “fair” because it’s how things always were. The Dems’ entire complaint is that Texas acted unfairly in having a mid-decade redistribution, so they’re “fixing” it by doing the same.
The thing is – SCOVA doesn’t even have to consider the ballot language to rule against the referendum. There is a good case to be made the Democrats simply started too late to meet Constitutional requirements. They should have started back in the regular session in spring 2025 instead of repurposing a special session and passing the bill on Halloween, after a million people had already voted for General Assembly.
That is one of the two separate arguments the Republicans have made. There is a good case to be made, but it’s not a compelling case. The question is what does the VA constitution mean by “election”, and both positions are plausible. Now the court has to decide which is meant. But even if they find for the Dems on the meaning of “election”, they can still find for the Reps on the “restoring fairness” language. Or vice versa.
take away from Republicans the advantage they had unfairly seized in those states
The problem with that argument is…
I would propose the real problem with that argument is it has nothing to do with the STATE of Virginia. Which is who the representatives and senators are supposed to ultimately represent. It’s basically removing our franchise in order to operate on a national level. The argument is very similar to the one about the Popular Vote compact.
You also have the problem that any argument from “fairness” is subjective (as opposed to “equal” or “just”) and not legitimate from a lawmaking POV.
Ah, so as a Democrat, you truly believe that it is just fine to punish some people in one place because some other people, in another place did something you don’t like.
You really think that can be described as ‘fair’.
The Supreme Court finally officially disagrees with you.
Squeal bitches!
That proposal floated to return the VA side of DC back to DC would kill this entire plan if they actually do it.
The only way they were able to make this map work was to take the densely populated, entirely communist, area just outside DC and split it into five separate districts. Half the State is then in five D districts, but they’re only D districts because of the commy voters up by DC.
Take that and make VA give it back to DC, and the whole plan falls apart.
VA would likely lose a congressional district in the next apportionment, and the State would also go back to being a swing state.
Congress can’t change a state’s boundaries without the consent of that state’s legislature.
Virginia originally ceded that territory to the United States, by a resolution of the VA legislature offering it, and a resolution of the Congress, signed by the president, accepting it.
The USA then gave it back to VA by a resolution passed by both houses of congress, signed by the president, endorsed by a referendum of the residents, and then accepted by a resolution of the VA legislature.
To give it back to the USA would require the same procedure that it required in the first place — resolutions by the VA legislature and the Congress, the latter signed by the president. A referendum of the residents is not constitutionally required, but both parties to the transaction would probably want one, just as they did in the 1840s.
Theoretically, VA could cede territory by redrawing its boundaries as long as it doesn’t infringe on another state’s boundaries. The ceded territory could remain unclaimed until it was annexed by another governing body.
However, as you said, this particular proposal came from Congress.
The bigger issue is that the Dems did not follow the Virginia Constitution. The first vote on the redistricting amendment by the House of Delegates and the state Senate took place in a late-October special session when early voting had already started for the state legislative and gubernatorial election.
This vote had the effect of eliminating the constitutional sequence which is supposed to provide voters with an opportunity to kick legislators to the curb that approve amendments that they don’t like. Voting by mail has greatly benefited the Dems (apparently there is a mail service from the great beyond for dead people). But this time early voting them tripped them up.
This violation is egregious, so hopefully the State Supreme Court will have no choice but to uphold the state constitution.
This is not at all clear. That’s one of the issues the supreme court must consider.
The Dems have a reasonable argument that “election”, as used in the VA constitution, means the event that is held on the first Tuesday after November 1. Absentee voting and early voting are just that — early. They are conveniences offered to the voter to vote in advance of the election itself, but those votes don’t take effect until the election. Thus the first passage of the resolution was before the election, and the second was after the election. Likewise the special election took place this Tuesday, which was more than 90 days after the resolution’s second passage, and the fact that people were allowed to vote early doesn’t change that.
Of course this defeats the purpose of that provision in the constitution, but that’s none of a court’s business. What matters is what the law says, not the purpose that its enactors thought it would serve.
The Rep argument is that when the VA constitution says “election” it means the entire period from when the first ballot is mailed out to overseas and military voters, until the last ballot is returned a few days after voting ends on “election day”. This is a perfectly reasonable position, and I hope the court adopts it, but it’s far from obvious.
That interpretation is too cute by a mile. The ‘No’ vote actually won for in-person, election-day voters. The Dem margin of victory came from mail-in votes which was about 75% ‘yes’.
A sizable part of the electorate casts votes by mail at the urging of Democrats.
The Dems don’t get to have it both ways.
So what? The Dems don’t deny that early voting exists. Their position is that early voting is just that: early. Early votes are cast before the election, not during it. That’s not an obviously wrong position, any more than the opposite view is obviously wrong. Both positions are plausible, and we shall see how the court decides.
This type of BS logic is why everyone despises lawyers.
There is no longer an Election Day. It has been replaced by an election period.
That’s your argument, and it’s a plausible one, but it’s not obviously correct. And anyone who despises lawyers is throwing their own freedom away, because (as Shakespeare had his villain Dick the Butcher acknowledge) lawyers stand between us and tyranny.
“If you think lawyer jokes are funny, next time you get arrested why don’t you hire a comedian?”
And as always, there are questions about the late arrival of votes from Fairfax County that changes the outcome of the election.
https://www.foxnews.com/politics/election-probe-targets-unusual-reports-wake-virginia-redistricting-referendum-afpi
Anyone can ask questions. So far there’s no indication of anything wrong about it; this is just a political organization doing its thing, just like the SPLC or the ADL. They’re just fishing; maybe they’ll find evidence of something wrong, and maybe they won’t.
But they’ll try. And let us hope SCOVA doesn’t buy these idiotic arguments they are pushing.
I would like to see the D/R percentages for the new districts. How many 51%D-49R% districts there are, etc. Sears may not have been a very strong candidate too.
If I recall none of the new districts are even close to 50/50. Most are more like D+20.
I am not surprised that the lower courts ruling was allowed to stand for now because the complaint and the ruling were pretty clear as to the failings of not only the process but the language itself. Even the districts are formed in complete violation of the state Constitution. At the same time I am surprised the VA Supreme Court had the backbone to do it.
If they want to draw new districts then make one completely surrounding DC and leave the rest alone.
Not if the referendum was valid. If it was then it amended the constitution, so by definition it can’t be unconstitutional. Whatever the constitution said before it is irrelevant — if and only if it was valid. If it was invalid then any redistricting, even a fair one, is unconstitutional.
Prepare the world for disappointment. There is virtually no way they overrule “the will of the people.” The only thing that can stop this now is time. Early voting for the August primary starts in June. There are no registered candidates for the districts that don’t yet exist.
That may be the only way SCOVA gets out of the mess they are in.
How many people that voted were aware of all the steps required, the actual process required for this to happen? Very few would be my guess. This was only allowed to go forward because if the vote had been a resounding no, there would no longer be an issue. The will of the people exists in a legal vacuum, sometimes. That being said, the GOP response was dismal.
TY Mary, great article.
GOP in VA has been pathetic, both during the 2024 elections and just about everything since, including this whole Sudetenland move on the part of the Dims.
If they decide the referendum was invalid, then “the will of the people” is irrelevant. The people don’t get to amend the constitution unless it’s put to them in the manner prescribed.
No 💩!
My point is now that the election actually happened and YES won they are unlikely to accept any of the arguments for overturning the results. They won’t have the sack.
Why on earth wouldn’t they? It’s a simple question of law. If the referendum followed the procedures laid down in the constitution, then it was valid. If it didn’t then it wasn’t. That’s all. What makes you think they would not follow the law as best they can determine it?
Can’t take a chance on the court getting this wrong. FL needs to redistrict with only one dem seat.
The FL constitution doesn’t allow that. And amendments need 3/5 of both houses of the legislature, and then 60% of the voters. And the earliest an amendment can be put to the voters is 90 days after it passes both houses and is filed.
The Democrats are fighting a Civil War. The Republicans are fighting a skirmish in the Berkshires. If the Republicans don’t understand this they’ll lose the mid-terms.
The Republicans don’t understand they are in a fight, period.
Not only are there no hills the GOP will die on, for the most part they don’t even see hills.
Which is why the Republicans can’t ever manage to rule for long, because they don’t deserve to rule. Their overall leadership just doesn’t have the stones to fight hard enough for it (DJT notwithstanding!)
Might this language question be moot anyway if the court rules that the measure didn’t pass the legislature twice with an intervening election in between, as is required by the state constitution?
Yes of course. But it may also find that there was an election in between but the language was invalid. These are two independent arguments, each of which would be sufficient to invalidate the referendum.
I listened to part of the argument (before I bailed, thanking God once again that I’m not a lawyer) and it seemed as if the “For” side was saying an election is a microscopic slice of time, so there can be a ‘before’ an election, and an ‘after’ an election, but some odd milliseconds after the polls close is the dividing line, with no ‘during’ involved. Right, more or less?
I thought their argument was that the entire election day was the election.
This is a good start, but the VA Constitution should shut it down. If the VA SCOTUS does not follow the VA Constitution then they are hopeless.
Huh? What are you talking about? An amendment to a constitution can’t be unconstitutional. If the court finds the referendum was invalid, either because of the timing or because of the language, then the constitution is not amended and the redistribution is invalid. If it finds that both the timing and the language were lawful, then the constitution has been amended and the redistribution is therefore valid.
You seem to be arguing that the new constitution should be struck down simply because it contradicts the old constitution! That’s ridiculous. It’s saying that constitutions can never be amended, which itself contradicts those very constitutions. VA’s constitution was adopted in 1971, and if upheld this would be the 54th amendment to it. That’s almost one amendment a year. Would you invalidate all the previous 53 amendments too?! And what of the 27 amendments to the US constitution; would you throw those out too?!
waiting for the judges to
“take it outside”
The term “fair” is too subjective for a ballot measure. Any action is deemed fair or unfair depending upon who you ask about it. As a parent (many decades ago) many of my actions were deemed “unfair” by my daughters, either individually or in tandem, but found to be fair by their mother and I.
Had the ballot measure in VA been worded to provide a district alignment that reflected the statewide distribution of D and R as determined by voter registration and maybe the parties’ performance in the past 2 national elections it might pass muster. The failure to comply with the constitutionally established process should be fatal, regardless.
“Fairness” is subjective, but voters know that.
And whether it did fail to comply with the process for amending the constitution is precisely the question that’s before the court. Republicans have raised at least two separate questions of law that the court must decide. If they’re right about at least one of those questions, then the referendum is invalid; but if the Dems are right about both questions then it is valid.
I’m not sure they do. None of the Dims I’ve talked to in NoVA think it’s subjective. They are CORRECT and everyone opposed is wrong (if not evil) as they marinate in the sauce of their TDS.
Let’s all just recognize that “gerrymandering” and the forming of districts are blatantly f**d up. IMO, which is worth nothing. All districts should be essentially square, rectangular, or follow natural boundaries. They don’t have to be the same size since they’re based on population, but they certainly should not be shaped by residents’ voting registration or, for that matter, their color.
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