Our Voter Guide for the special election is now up and running with the basic information on the redistricting referendum.
In the musical “Hamilton,” Alexander Hamilton and Aaron Burr negotiate a duel, not the famous fatal one between themselves but a different one between two other people for which Hamilton and Burr were acting as seconds.
When those talks break down because both duellists refused to apologize, Burr blurts out in frustration: “OK, so we’re doing this.”
Meaning, the duel was on.
That brings us to Monday’s ruling in Lynchburg Circuit Court, where Judge Patrick Yeatts dismissed the city’s request for judicial guidance on how to handle the upcoming April 21 special election on a constitutional amendment to allow the drawing of congressional lines for this fall’s midterms.
OK, so we’re doing this.
Meaning, it looks like this election is really on.
It’s also on in a way no other election in Virginia has been held before, because it begins — early voting starts Friday — with a legal cloud over whether the results will really count.
Contrary to what those on the pro-redistricting side have to say in their press releases, the courts have not upheld either the constitutionality or the legality of the referendum; they’ve simply said they’re not going to interfere with the vote going forward. Two cases out of Tazewell County, where a judge found the General Assembly made procedural errors in setting up the referendum, remain on appeal. In one of those, the court has set a schedule for filing briefs that won’t conclude until after the April 21 election. In the Lynchburg case, the judge dismissed the case on the grounds that it wasn’t ripe for a ruling yet — and wouldn’t be until after the election had been held.
This sets up a scenario that neither side in the redistricting battle should want: the prospect that we hold an election and afterwards the Virginia Supreme Court rules that it doesn’t count because it was “void ab initio” — Latin legalese for void from the beginning.
Realistically, this will only happen if the “yes” side prevails. If the “no” side prevails and the amendment is defeated, the court could simply declare the whole thing moot and never have to rule. That means the “yes” side really has a greater reason to wish for the court to intervene (and, of course, rule in its favor) than the “no” side does. The “yes” side has won a tactical victory (the election can happen) but not yet a strategic one. The “yes” side is gambling that it wins and the courts aren’t inclined to throw out the result, even if justices find there were procedural problems. That means it’s the “no” side that’s looking for legal ways to stop the election.
The Republican-dominated Lynchburg City Council tried to force the Virginia Supreme Court to act with its request for a declaratory judgment, hoping for a local ruling that the state’s Democratic Attorney, Jay Jones, would be forced to appeal. Instead, what it got was “not now, later.”
“The court didn’t say the election was legal; it just kicked the can down the road,” said Del. Wren Williams, R-Patrick County, in a statement. “This feels dangerously familiar to 2020, where we were told we were too early to sue before the election, and then too late to sue after.” That 2020 reference is to that year’s presidential election, where Williams served as a lawyer on Donald Trump’s recount team in Wisconsin.
That means come Friday, we begin an election that promises to be legally chaotic.
The state is currently prohibited, by the second case in Tazewell, from doing anything to help with the election. For the most part, that doesn’t matter, because elections are locally run, but it does mean the state Department of Elections (known as ELECT) can’t even offer advice to local registrars when problems come up, as they always do, even under normal circumstances.
Radford registrar Lindsey Williams said the state is required to supply literature describing the proposed constitutional amendment. “This literature is distributed to voters who may have questions about the ballot question,” she said in a statement. “This is required to be posted at polling places on Election Day and at early voting sites. I inquired with ELECT on when we would receive this literature earlier today and received this response: ‘Due to the court order preventing ELECT from furthering preparation for the special election, we cannot assist with this request at this time.’”
That Tazewell injunction doesn’t just prohibit the state from doing anything; it also specifically prohibits the Tazewell registrar from doing anything with the election, which raises the question of whether the election will even be held in that county. Tazewell’s electoral board met Monday to figure out what to do; it now has another hearing before the judge on Wednesday to seek more clarity about what it can and cannot do.
Meanwhile, Patrick County’s board of supervisors has voted that the local electoral board can’t use county resources for the election — on a practical basis, that means the registrar’s office can’t be used for early voting because it’s in a county-owned building. And, come April 21, it means voting isn’t supposed to be held in some precincts because they’re in county-owned buildings. How is that going to work?
On the other hand, registrars don’t report to the supervisors; they report to the local electoral board, so the potential for legal confusion is high. Or perhaps I should say, further legal confusion.
You’d think that this is where courts would step in, but the Virginia Supreme Court has not — and on Monday, a circuit court in Lynchburg has declined to step in, at least not now.
While the courts have not specifically said this (the Lynchburg judge won’t file his written opinion until Wednesday), the apparent rationale for this inaction dates back 114 years.
In 1912, there was another dispute over a proposed amendment to the state constitution. In a case styled Scott v. James (J.A. Scott was a Virginia resident who sued; B.O. James was the secretary of the commonwealth), Scott wanted the election blocked, citing various procedural irregularities in the way the amendment was put before voters. The Virginia Supreme Court declined to intervene.
The court’s ruling began from a position of utmost caution: “It is a well settled principle regulating the jurisdiction of courts of equity that such courts will not, with few exceptions, enjoin the holding of an election, or interfere, by its process of injunction, with the holding of an election.”
It then pointed out that courts don’t intervene in lawmaking; they only deal with laws that are already in place.
“If a bill is passed by both houses of the General Assembly and is about to be transmitted to the governor for his veto or signature, it is very clear that the judiciary department of the government could not enjoin the transmission of the enacted bill to the governor on the ground that it was unconstitutional, as such a proceeding would manifestly be an unwarranted interference by the courts with the constitutional processes of the legislative department,” the 1912 ruling said.
That same rationale should apply to constitutional amendments as well, the Virginia Supreme Court said. While amendments are different from mere laws, they’re close enough, it said. “So, in the case at bar, the amending of the Constitution is the making of a permanent law for the people of the State by which they are to be governed in the future, and the courts cannot interfere to stop any of the proceedings while this permanent law is in process of being made. If the amendment is not adopted, of course, no question will ever come before the court. If, upon completion of the proceedings, the validity of the amendment is assailed on the ground that the several provisions of the Constitution have not been complied with, then the courts can pass upon the validity of the amendment. The judiciary department has the power, and it is its duty, to pass upon the validity of a constitutional enactment when put in force, as well as upon the validity of an act of the legislature regularly passed and put in effect.”
In other words, just as courts won’t intervene with a bill going to the governor, but might later declare the law unconstitutional, the Virginia Supreme Court in 1912 wasn’t inclined to intervene with a constitutional amendment going to the voters, but reserved the right to declare the process by which the amendment was sent to voters was unconstitutional.
The Virginia Supreme Court in 2026 appears to be thinking the same way — which means we’re about to have an election that someday it might rule doesn’t count.
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