When Claude Swanson was governor of Virginia in the early 1900s, he awarded his top staffers the title of “colonel.” Swanson doesn’t figure in this story beyond that, but it explains why, for the rest of his life, James Scott of Lynchburg was referred to as “Colonel Scott” — and Colonel Scott is very much part of this story.
Come 1912, Swanson was out of office, and Scott was back in Lynchburg, running his insurance company — the one now called Scott Insurance. Scott, though, wanted to run something else. He wanted to be city treasurer, an office that would be on the ballot the following year.
Scott was counting on this being an easy race because the state’s new constitution, just a decade old, limited city treasurers to two terms and the incumbent, Henry Adams, would have to step down.
There had been an effort to amend the state constitution to allow city treasurers — and commissioners of the revenue — to seek reelection to a third term or more, but voters had rejected that in a referendum in 1910, even as they approved an amendment to allow their county counterparts to be reelected.
Then the legislature did something Scott wasn’t expecting: It sent the referendum on city treasurers and commissioners of the revenue back to voters for the November 1912 ballot, using a procedural move that Scott didn’t think was fair — or legal.
Scott sued to stop the election, alleging that it was invalid.
Scott’s case made its way to the Virginia Supreme Court, which ruled that it had no intention of halting the election — that if the procedure by which the amendment had been placed on the ballot was unconstitutional, the court would only take up that question after the election had taken place, not before.
The amendment that Scott opposed so much passed. If he challenged it in court after that, the case never made it back to the Virginia Supreme Court. The next year, Adams ran for reelection — unopposed. He would continue to do so for many more years, finally retiring after two decades in office. On the side, Adams was involved in several business ventures, including the Ivy White Ash Coal Company and Acme Dry Cleaning and Dye Works. Those were apparently quite lucrative ventures. When he died in 1924, Adams was lionized for never reporting delinquent taxes in the city, partly because he considered it cheaper to pay any unpaid taxes out of his own pocket rather than go through the hassle of seizing property and putting it up for sale.
Scott apparently never ran for office; he spent the rest of his life running his insurance company. When he died in 1937, the story in the Lynchburg newspaper announcing his death never mentioned either the suit or his interest in the treasurer’s job.
Scott left a legacy, though, that continues to this day. More than a century after he wanted to run for treasurer of Lynchburg, Virginia courts still regard the disposition of Scott’s suit as the law of the land regarding election challenges.
Virginia is currently holding a special election on a constitutional amendment that would allow the General Assembly to redraw congressional lines in time for this fall’s elections and give a partisan advantage to Democrats. Republicans have gone to court with multiple challenges to the procedure by which this amendment was put on the ballot.
When the Virginia Supreme Court took up those challenges, the justices said that these questions they posed were “of grave concern to the court” but that the court shouldn’t, couldn’t, wouldn’t rule on these objections until after the votes had been cast. Its legal rationale? Scott’s case in 1912.
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Virginia lawyers who deal with election law know the name Scott v. James, as the suit is officially styled. However, I couldn’t find any who actually knew who Scott was. Even the internet failed me when I first wrote about the case recently. In last week’s West of the Capital, our weekly political newsletter, I put out a call to anyone familiar with Scott to let me know. One reader — who did not want to be identified, otherwise I’d give him credit — had access to some paywalled websites I do not. He sent me a tranche of old newspaper clippings and genealogical documents that piece together a story that touches on an important era in Virginia that many still don’t know well.
We begin in 1900. That’s when Henry P. Adams became treasurer in Lynchburg. At the time, Virginia was operating under the Reconstruction-era state constitution adopted in the aftermath of the Civil War. That constitution, drafted by a biracial assembly in 1867-68, was considered quite progressive for its day. It required public schools and mandated attendance. It expanded the electorate to include all men, Black and white. It instituted the secret ballot.
The end of the Civil War saw a brief era in which racial harmony, if not actual equality, seemed possible. The era quickly faded as white supremacists came to power in the 1880s and instituted what we know today as “Jim Crow” laws of segregation. There was just one problem, as they saw it: that Reconstruction-era constitution that allowed Black men to vote. The solution was a wholesale rewrite of the state constitution for the express purpose of denying as many Black men as possible the right to vote. In 1902, a state convention drew up a new constitution — and rather than put it to a vote where it might fail, the convention simply declared the new document was in force. The 1902 constitution eliminated about 60% of the state’s voters, not just Black voters but also many white voters in Southwest Virginia who had historically voted “the wrong way” in the eyes of the conservative Democrats who ran the state.
That’s a story for another day. What matters is that in 1902, Virginia got a new state constitution, and one of its provisions limited treasurers and commissioners of the revenue to two terms. That means Adams’ days as city treasurer in Lynchburg were numbered; so were a lot of other treasurers and commissioners of the revenue across the state.
Political pressure built to change that. Under the rules at the time (which are still in effect today, under a different constitution), the General Assembly had to pass a proposed amendment twice, with an election in between, before it could go to voters for final approval. In 1908, the legislature passed two amendments, one allowing treasurers to run again, the other allowing commissioners of the revenue to do so. The General Assembly came back in 1910 and passed the amendments again, this time — for reasons I’ve been unable to determine — deciding the two amendments should be combined into a single question on the ballot.
In November 1910, Virginians voted down that amendment. Adams would have to leave office once his term ended after the 1913 election, and Scott started plotting his move. “It has been reported on the streets for some time that Mr. Scott would be a candidate for the treasurership of Lynchburg,” the Lynchburg newspaper would later report.
The political pressure that had prompted the General Assembly to pass the reelection amendment in 1908 and 1910 did not abate, though. With the deadline approaching, it only intensified, according to newspaper accounts at the time. In 1912, the legislature did something legally questionable: It passed the reelection amendment again, this time as two separate measures (which it probably should have done in 1910), and cited the original 1908 vote as the first required vote.
There was some controversy about this in the legislature; the Alexandria Gazette reported that the measure “was fought in the state Senate” but passed. Gov. William Mann let the enabling legislation become law without his signature, often a sign that a governor has reservations about a bill but isn’t inclined to stop it.
That triggered a referendum for November 1912 — and Scott’s lawsuit. He wanted the election halted on the grounds that the amendment had been improperly adopted by the General Assembly. The James in Scott v. James was B.O. James, the secretary of the commonwealth, the office that handled the paperwork for the election. The suit was filed in Richmond; Scott was spotted in Richmond but didn’t want to comment on his potential candidacy. “But that doesn’t mean I will not run,” he told a correspondent for The News in Lynchburg.
When Scott’s suit came to trial that April, Circuit Judge Beverly T. Crump was skeptical. The Alexandria Gazette reported that Crump “held that to grant the relief prayed for would be interference on the part of the judiciary department with the process of legislation. He further ruled that the effect of the injunction would be to enjoin the holding of the election.”
Scott appealed. With no intermediate court in those days, his appeal went straight to the Virginia Supreme Court.
The case made statewide news, where the plaintiff was typically referred to by his honorary military title. The Ledger-Star in Norfolk headlined: “Appeal of Colonel James A. Scott from Richmond court’s decision is granted.”
The state constitution at the time required the Virginia Supreme Court to meet regularly at three locations outside Richmond — Staunton, Winchester and Wytheville — apparently a concession to western lawyers in horse-and-buggy days, although by then automobiles were starting to take over the roads. The court was meeting in Wytheville in June when it agreed to hear Scott’s appeal; the case itself was heard that September in Staunton. With no early voting in those days, that was sufficient time to halt the election if that was the court’s decision.
Scott’s lawyers, from the Lynchburg firm of Harper & Goodman, argued that as a taxpayer, he had a right to challenge the state from going to the expense of holding an election that was potentially unconstitutional. The attorney general — at the time, Samuel Williams of Bland County — spoke for the state, although it’s unclear whether Williams himself appeared in court. Multiple private attorneys are listed in the court filing as part of the state’s legal team.
The Supreme Court, in its eventual opinion, noted that the case “has been ably and exhaustively argued” by both sides.
It then ruled against Scott. If the justices gave a reason why, that was not reported at the time, although the Richmond Times-Dispatch said a formal opinion would follow later.
The election went on as scheduled. That was a presidential election year, and an exciting one. The Republican incumbent, William Howard Taft, had seen his popularity plummet. A former Republican president, Theodore Roosevelt, was running as a third-party candidate for the Bull Moose Party. With Republicans split, the Democratic nominee won: Woodrow Wilson, the Staunton-born governor of New Jersey. The News in Lynchburg reported “few drunks in Richmond” on election night and “Business men of Richmond pleased with election of Wilson.”
The two constitutional amendments allowing city treasurers and commissioners of the revenue to seek reelection passed easily. The treasurer vote was 57,885 yes to 20,723 no; the commissioner vote was 58,496 yes to 20,000 no. For those who prefer their elections in percentages, that’s 74% to 26% on treasurers and 75% to 25% on commissioners of the revenue. It’s unclear why a measure that had been rejected two years earlier was so soundly approved in 1912, but it was.
After the election, the Supreme Court finally produced its written opinion in the Scott v. James case. Justice Richard Cardwell of Hanover County wrote for the court that it was a well-settled principle that courts did not interfere in the passing of laws, but only ruled on their constitutionality later if someone filed suit. The same principle should apply to constitutional amendments, he wrote, because amendments were simply legislating in a different form — with voters taking the place of the General Assembly.
“So, in the case at bar,” Cardwell said for the court, “the courts cannot interfere to stop any of the proceedings while this permanent law is in the process of being made” — just as they wouldn’t stop the legislature from sending a bill to the governor. However, “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.” Cardwell went further: “The judiciary department has the power, and it is its duty, to pass upon the validity of a constitutional amendment when put in force.”
The Virginia Supreme Court appears not to have had to rule on the validity of those 1912 amendments, but it may well have to rule on the validity of the 2026 amendment — if it’s approved in the April 21 referendum.
Broadly speaking, the legal challenge to the redistricting amendment is the same as Scott’s challenge to the treasurer reelection amendment in 1912: allegations that the General Assembly didn’t follow correct procedure in adopting it. There’s also another, more unusual, legal challenge this time: that the language used on the ballot is misleading.
The current Virginia Supreme Court, in its order that allowed the referendum to go forward, said that “the claims asserted in the present case involve weighty assertions of invalidity against the process employed by the General Assembly.” And then there was that ominous-sounding warning that “these issues are of grave concern to the court.” Is that foreshadowing? We won’t know until the court rules — and that ruling won’t come until after the votes are counted. That, the court said, is “consistent with Scott,” a case now 114 years old.
This shows the power of precedent in the American legal system (and why it’s so remarkable when a precedent is overturned). Indeed, the court in 1912 did not invent the principles of non-interference that it enunciated; that 1912 opinion included nearly a full page worth of citations of other cases, in other states, that had reached similar conclusions back into the 1800s.
In the absence of Scott’s 1912 challenge, Virginia might be without an in-state precedent for the court to rely on. However, it does have a precedent, thanks entirely to Scott’s interest in becoming treasurer of Lynchburg, back in the same year that the Titanic sank, Robert Scott froze to death in Antarctica and women weren’t allowed to vote.
All that’s a long way of saying the most important votes in this year’s redistricting referendum will be those of seven justices who won’t cast theirs until after the election is over.
My inquiry that led to this column started in West of the Capital, our weekly political newsletter. In this week’s newsletter, I’ll take a look at the early voting patterns so far in the special election. If you’re not signed up, you can take care of that right now: