We’ve had quite a run of action on the redistricting front: A Tazewell County judge ordered the state to halt preparations for the April 21 special election. Attorney General Jay Jones appealed that ruling to the Virginia Supreme Court. Gov. Abigail Spanberger signed the legislation for the redrawn congressional maps aimed at knocking out four of the state’s five Republican House members. The Patrick County Board of Supervisors voted to instruct its registrar not to do anything about the election until the courts resolve the matter. The Lynchburg City Council has set a special meeting for Monday to do the same thing.
It may be time for us all to get caught up. With that in mind, here are some frequently asked questions on redistricting.
I’m completely confused about what’s going on.
Good. That means you understand it quite well. Although technically, that’s not really a question, so let me ask you one: What confuses you most?
Why are we seeing all these new suits and resolutions? Didn’t the Virginia Supreme Court already rule the election could go forward?
Ah, that. Not really. What the Supreme Court ruled on was a very narrow procedural matter, not the merits of the case. These new suits and resolutions — which would be a good band name, by the way — are aimed at forcing an early ruling on those merits.
Then I’m really confused. What did the court rule? And why isn’t that enough?
Do you remember in law school where they talked about the rules of equity and how they should apply?
Umm, I didn’t go to law school.
OK, let me try to simplify this. First a group of Republican state legislators filed suit in Tazewell County —
Why Tazewell County?
Because they could. And because they hoped to find a friendly judge in a conservative part of the state and they did. It’s called judge-shopping. If this had been the other way around, you can bet Democrats would have filed somewhere they would think they could get a favorable result.
That’s kind of messy but go on.
That’s politics. This ain’t exactly the Schoolhouse Rock version of “I’m Just a Bill” on how a bill becomes law. Anyway, the judge there ruled that the General Assembly had broken a bunch of laws in passing the constitutional amendment necessary to make redistricting work — had some very strong words, in fact. Called the process “void.” But he never actually said the vote couldn’t happen. Instead, all he did was issue an order to the Tazewell County court clerk on some procedural things.
That’s what got appealed to the Virginia Supreme Court — and what the justices put on hold until they could hear the case. The catch is the schedule the justices set for that case meant they wouldn’t rule until after the April 21 election.
So if the judge said the election was void, why didn’t he order it stopped?
Maybe he thought he was clear enough, maybe it was a legalistic thing, but state election officials weren’t a party to the case. You might need either a law degree or a private conversation with the judge to understand all that. But what matters is that his order was only directed to Tazewell County.
So if that case was just about a local procedural ruling, why did it get so much attention?
Because it was clear to both sides that when it got to the Virginia Supreme Court, the real argument was going to be whether the election was valid at all — but the schedule for briefs extends beyond the election, so the court’s potentially in the position of ruling that the election just held shouldn’t have been held. Or, conversely, not addressing those issues at all and just dealing with technical things like when notices should have been posted. That’s probably more likely because courts are extremely reluctant to interfere with elections.
So why did the court set a schedule that wouldn’t have it ruling until after the election?
Good question. You’d have to ask the justices. It could be that since the lower court ruling was very narrow and procedural, the Supreme Court responded in kind, even though it’s clear to everyone that this is really a challenge to the election itself. The Virginia Supreme Court is considered a “small c” conservative court in that it’s historically cautious and pays great heed to procedure. This is not a partisan or ideological court that’s gone looking to insert itself into matters not before it.
Anyway, that’s the first case, legally styled McDougle, et al v. Nardo. We’ll call that either the McDougle case (after Senate Minority Leader Ryan McDougle of Hanover County) or Tazewell 1.
Now there’s a second case, also filed in Tazewell County, with a ruling that addresses the election more directly. This is Republican National Committee, et al, v. Koski, which we can call the RNC case or Tazewell 2.
So how is this case different from the first case?
Let’s let Judge Jack Hurley Jr. himself answer that. Here’s what he wrote in his ruling in the RNC case: “This is a different case with different plaintiffs and different defendants concerning a different statute and a different issue.”
If you want all the legalities, you can read his ruling and don’t need this FAQ, but the most important difference is this time he issued an order halting election officials from working on the April 21 referendum.
So the election is canceled?
Not quite. His injunction only runs through March 18. That’s before the April 21 election but after early voting is scheduled to start, so Virginia can’t meet its mandated 45-day early-voting period under his order. Plus, there’s lots of prep work that registrars have to do before early voting starts — getting ballots printed, poll workers lined up, that sort of thing. Right now, they can’t do any of that.
That is messy. So what happens now?
Lawyers rack up lots of billable hours and journalists give up sunny weekends to write explanations like this, just at a much lower pay rate, which is why you ought to help support independent journalism by becoming a Cardinal News member. But to answer the question more directly, Jones has appealed the second Tazewell ruling to the Virginia Supreme Court. And now we wait.
For how long?
Good question. The court’s in a bind. It could stay the injunction and let the election prep and the election itself go forward while the case is argued. However, it would be very awkward if the court later ruled the election was invalid and had to throw out votes.
What’s the precedent for this?
Very little. I’ve been consulting legal authorities, who tend to range from fascinated to stumped. Like I said, courts really don’t like to get involved in elections. They regard those as “political matters” and not “legal matters,” but here’s a way where the legality of the election has been challenged. The best way for the Virginia Supreme Court to avoid potentially having to throw out votes is to rule quickly — something else courts don’t like to do.
Meanwhile, some local governments are voting not to hold the election? What’s with that?
Cardinal reporters Elizabeth Beyer and Emma Malinak explained all that quite well in this story. But if you want a summary: The Patrick County Board of Supervisors voted Friday to direct the local registrar not to hold early voting “unless and until” a court rules that the election is “constitutionally permissible.” It also blocks “county-owned facilities or county resources” from being used until such a ruling is made. The Lynchburg City Council takes up a similar resolution Monday night. The Spotsylvania County Board of Supervisors passed its own resolution Thursday, although it merely “suggests” these actions; Patrick actually ordered them.
Whoa. Can a local government do that?
A local government can pass any resolution it wants.
But what I mean is: Is this legal?
Ah, now that’s the question, isn’t it?
Yeah, but I was hoping you’d have an answer.
The answer is that these resolutions are aimed at provoking a legal battle to create another case before the Virginia Supreme Court and try to force it to rule.
Let’s say the court stays the injunction from the RNC case and lets the election prep go forward until it rules on the merits of the case — the Patrick order and potentially others are still out there, and those localities could contend that since the court hasn’t really ruled, their registrars can’t do election prep. The attorney general can’t let that happen, so he’d have to intervene, and we’d wind up with another case before the Virginia Supreme Court.
Are these local actions legal? I’m not a lawyer, but I’d say probably not. It is, though, a clever legal strategy to create multiple pressure points on the court to act — and act soon.
Is there a grand philosophical observation you’d like to make?
Oh yes. President Donald Trump likes to talk about how elections ought to be nationalized, but elections are run by the state. However, when we say “the state,” what we really mean are local electoral boards. The state may set the rules and certify the results, but most of the action takes place at the local level. To me, the key part of the Patrick resolution is the prohibition against using “county-owned facilities or county resources” until this is all resolved, not the directive to the registrar. Registrars don’t report to councils or boards of supervisors, they report to local electoral boards, but registrars work out of local government offices. On Election Day, many precincts are in schools or other locally owned facilities. This is why election conspiracy theories are so out of touch with reality. Elections are an incredibly decentralized government operation that rely on ordinary citizens doing much of the work; you can’t have an election conspiracy in my county unless that nice old widow who sings in the church choir is part of it because she works the polls every election. Anyway, this is also what gives Patrick and potentially Lynchburg and other places such leverage: You can’t realistically hold an election if you can’t recruit poll workers or use schools as voting places — and you can’t hold a state election if even one locality gums up the works.
Republicans have done a really good job here at creating multiple legal lines of attack, although they all lead to the same place: the Virginia Supreme Court.
What’s the strongest legal argument that Republicans have to stop the election?
Keep in mind that I’m not a lawyer and there are multiple procedural things at issue here, but probably the strongest is the “intervening election” rule. The Virginia constitution says that the General Assembly must pass a proposed constitutional amendment twice, with an election in between. The legislature first passed this in a special session in October, just before the November election. Republicans say that shouldn’t count because early voting was underway. Democrats say the law only refers to the traditional Election Day. What we have here is a fascinating role reversal. Democrats love early voting but say that doesn’t really fit the definition of Election Day. Republicans have always been skeptical of early voting, especially 45 days of it, but now see it as their legal life preserver.
When the legislature passed the amendment the first time in October, more than 1.2 million ballots had already been cast. That wound up being 35.3% of the total votes, so Republicans would seem to have a strong argument on a practical basis. Whether they do on a legal basis, that’s up to the Virginia Supreme Court, depending on how they define an election. Is it the traditional Election Day or the whole voting period?
Is there a Shakespeare quote you’d like to use here?
“Macbeth,” Act I, Scene VII. That’s where Macbeth, contemplating whether to redistrict the king out of his seat on the throne of Scotland with a dagger, muses: “If it were done when ’tis done, then ’twere well it were done quickly.”
So a quick Virginia Supreme Court ruling would resolve all this?
It would resolve whether the election is legal, or whether there were procedural errors in how it was set up. If the election were held, and the “yes” side prevailed, then Republicans undoubtedly would sue again — to challenge the maps themselves. They can’t sue over those now because they’re not law yet.
So you mean we might have more lawsuits?
No. I’m saying we will have more lawsuits. And more FAQs.
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