“It was always a question of law, not emotion. No matter how much money they threw at this thing, it was doomed to fail.”
By Del. Wren Williams, 47th District
On Tuesday, April 21, Virginians narrowly approved the constitutional amendment giving the General Assembly’s Democratic majority temporary authority to redraw Virginia’s congressional map outside the ordinary decennial cycle.
Twenty-four hours after the election, Tazewell County Circuit Court Judge Jack C. Hurley Jr. entered final judgment voiding the amendment ab initio, stopping all certification of the results, and barring any state official from implementing new districts. Judge Hurley ruled in favor of the law, as is his oath to do. Attorney General Jay Jones announced an immediate appeal.
The political hyperventilating from the Left after the ruling is predictable. The Attorney General accused Judge Hurley of functioning as an “activist judge” with “veto power over the People’s vote.” Please let’s not get started on “activist judges.” Minority Leader Jeffries, from a podium across the river, called the ruling “desperation.” Projecting much?
The Court did not overturn the referendum because it disagreed with the outcome. The Court ruled on grounds that have been before it since January: that the amendment was never properly called in the first place. You cannot certify the results of an election that was not properly authorized by law to be held in the first place. It is like protesting a King that does not exist.
Virginia’s Constitution is not a suggestion. Article XII, Section 1 requires a proposed amendment to be passed, then referred to a General Assembly convened after an intervening election of the House of Delegates, and then passed again. It requires the amendment’s text to be published for 90 days before that intervening election (begins). And a special session called for a defined purpose. The 2024 budget session cannot be expanded to enact a constitutional referendum.
The Court found that none of those requirements were met. The budget session’s scope was enlarged by simple majority. The required intervening election will not occur until 2027. The 90-day publication requirement was ignored, then legislatively erased. And the ballot question put to voters was “flagrantly misleading.”
These are not close calls dressed up as partisan grievances. These provisions are the actual requirements of the Constitution of Virginia. A Republican-appointed judge in Tazewell County found the referendum failed procedurally prior to the first ballot cast. A Democratic-appointed judge, faithful to the same text and record, would have to reach them too. If not, that is the point of an appeal.
The Supreme Court of Virginia will have the final word, probably on an expedited schedule. In March, SCOVA allowed the referendum to proceed while reserving the underlying merits, following precedent wherein a court does not intervene but will review an election. The merits are now ripe.
Three threshold questions sit before the Court: whether a special session’s scope can be expanded to add a constitutional amendment; whether the intervening-election requirement was met; and whether a ballot question forcing voters to debate voting for or against fairness. The Court found these questions have not been answered and fail to stand when tested.
In the meantime, all votes cast remain legally inert. The new map cannot be enacted. The election results cannot be verified. Candidates cannot file in districts that do not legally exist. Election officials cannot update registration records on the strength of an amendment a court has declared void from the start. The General Assembly has no valid map to implement even if it wishes to.
None of this is about whether Virginia’s congressional delegation should be 6-5 or 10-1. It is about whether constitutional procedure means anything when a governing majority finds it inconvenient. Virginians who voted yes and Virginians who voted no have the same interest in that question: that amendments to the state’s foundational charter be adopted the way the charter itself requires, not the way the moment’s politics prefer.
The Attorney General is entitled to his tax-payer funded appeal. He is not entitled to treat the Virginia Constitution as a procedural obstacle. The Supreme Court of Virginia will decide whether Judge Hurley was right. My expectation is that the Court will uphold the findings, the Democrats will appeal, and SCOTUS will decline to take up the case.
Williams represents the 47th District in the Virginia House of Delegates.
