For Judge Jack S. Hurley, Jr., it was now or never.
Hurley is the Southwest Virginia judge whom Republicans selected to hear their lawsuit seeking to block Democrats’ plans to gerrymander the state’s 11 congressional districts.
The judge had given both sides until next week to provide written arguments about the applicability of a 100-year-old law dealing with public notice before the state constitution can be amended.
But legislative Democrats — who accused Republicans of “judge-shopping” — turned the tables on Hurley by fast-tracking legislation that would transfer the case to Richmond Circuit Court and retroactively repeal the law in question.
So on Tuesday afternoon, an hour after the state Senate voted along party-lines to approve legislation fashioned to take the case out of his hands, Hurley issued a six-page order finding in favor of Republicans. He ruled that legislative Democrats had sidestepped both state law and their own rules in a rush to redraw congressional districts before the midterm elections this November.
Changing Virginia’s rules for drawing legislative districts became no easy task after 2020, when voters overwhelmingly agreed to enshrine a bipartisan redistricting commission in the state constitution.
Amending the constitution requires voter approval, but only after the legislature approves the language twice, the second time occurring after a November general election for the House of Delegates.
The process usually takes more than two years, but Democrats believe they have found a way to get it done in six months. The General Assembly first approved the redistricting amendment in a special session held Oct. 31, just a few days before in-person voting for state House elections. The second approval came this month during the opening days of the regular legislative session.
Democrats are planning to hold a statewide ballot initiative on April 21 that would give voters the final word whether or not to approve a limited carve out, allowing the Democratic-controlled legislature to draw new congressional districts that would be used this November.
Virginia Democrats point their finger at President Donald Trump, who has encouraged Republican states to gerrymander their congressional districts to flip as many Democratic seats as possible this fall. Texas was the first to comply, which prompted strongly Democratic California to respond in kind.
Virginia Democrats — who control both chambers of the General Assembly — say they can’t sit idly by as Trump rigs elections in other Republican states.
A Democratic group calling itself “Virginians for Fair Elections” sent out a fundraising appeal on Wednesday that blasted Hurley’s ruling as part of a GOP bid to silence voters from being heard in a referendum.
“Right now, Republicans are trying to run out the clock, muddy the process and keep Virginians from voting on fair elections and leveling the playing field all across the county.”
Those who oppose the plan note that the Democrats’ answer to more fair national elections seems to be sticking Virginians with manifestly unfair districts. Democrats say they may try to draw lines that create Democratic majorities in four of the five districts now represented by GOP members of Congress.
“There is nothing fair about the map that’s going to be released on Friday,” said Brian Cannon, who led a bipartisan effort to approve the redistricting commission. “Gerrymandering disenfranchises voters and is fundamentally unfair. It’s morally wrong.”
Few people were surprised that a judge from Southwest Virginia found in favor of Republicans. After all, Democrats will tell you that Judge Hurley ran for the state legislature in 1999 as a Republican.
What was unexpected was that Hurley felt compelled to act before the deadline he had given to both sides. In his order, Hurley indicated that legislation (SB769/HB1384) that Democrats introduced last week made the case “ripe” for immediate action.
The identical bills — which are expected to pass by the end of the week — would amend the current 2025-26 state budget to include $5 million for an April 21 statewide vote. The measures also include language that would stipulate that all litigation related to redistricting should be heard by the Richmond Circuit Court.
More significantly, the budget bill includes language that would eliminate a state law that a notice of proposed changes to the state constitution must be displayed on the door of every courthouse in Virginia for at least three months before the state House election sandwiched between the two legislative approvals. The bill includes unusual language that would eliminate the law retroactively, all the way back to 1971 when Virginia adopted a new state constitution.
In their Tazewell lawsuit, Republicans said the legislature’s first approval of the redistricting amendment last October was invalid because voters were not given the notice required by law. The legislative action took place only four days before the November 2025 state House elections.
Democrats dismiss the law as an outdated remnant of the 1902 state constitution written in the days when people traveled by horse or foot once a month to the county seat for court day.
In a floor debate Tuesday, House Majority Leader Scott Surovell, D-Fairfax County, noted that the three-month notice provision was removed from the 1971 constitution and only by oversight was the provision not excised from the state code.
Surovell said the retroactive nature was simply a safeguard so no one could question the validity of any constitutional amendment passed in the last half-century. “It was thought it would be safer to repeal the statute effective to 1971,” he said.
State Minority Leader Sen. Ryan McDougle, R-Hanover County, congratulated Surovell on his attempted verbal slight of hand.
“If the law was in place, you can’t come back and say, ‘Whoops….I’m going to go back and undo that,’” McDougle said.
In his opinion, Judge Hurley ruled that a lack of required public notice was a fatal defect in the legislature’s approval of the constitutional amendment last October.
Hurley’s order uses a Trumpian flourish of using ALL CAPS for emphasis. One paragraph reads: “Likewise, even if said passage HAD been valid, that no ‘NEXT ENSURING GENERAL ELECTION OF THE MEMBERS OF THE HOUSE OF DELEGATES’ has occurred the court ORDERS that any 2026 Regular Session vote on a proposed constitutional Amendment SHALL BE and IS construed as a FIRST vote under Article XII, Section 1 of the Virginia Constitution.”
Hurley declined to be interviewed for this article. There’s no way to know if he watched the live Senate floor debate on Tuesday, but his order makes it clear he has been keeping close tabs on the legislation in Richmond aimed at his case in Tazewell. At the end of his order, Hurley took a swipe at the constitutionality of the bills.
He questioned the notion that the legislature could pass a bill that would retroactively apply to the past. He noted the state constitution mentions only the application of laws in the future.
Hurley also questioned the constitutionality of language that would transfer the Tazewell case and any other redistricting litigation to Richmond Circuit Court. He said the measure would be a “direct violation” of a constitutional prohibition on special legislation that includes “a change of venue in civil or criminal cases.”