When Republican lawyers present their arguments to the Virginia Supreme Court today for why the court should overturn the recent referendum on redistricting, they will face an unusual audience: All seven justices owe their job to the General Assembly that put the referendum on the ballot.
Those justices don’t owe their position to this particular set of legislators now serving, but if they wish to be reelected when their terms expire, they will need the support of the General Assembly then. For some justices, reelection isn’t a factor — they’ll hit the mandatory retirement age of 73 before their 12-year terms end.
For two justices, though, their reelection date is uncomfortably near. Arthur Kelsey’s term expires Jan. 31, 2027, which means, if he seeks reelection, he will go before the legislators whose handiwork he is now being asked to throw out. Stephen McCullough’s term expires March 2, 2028, which means he’ll go before the General Assembly that is elected in November 2027, but the odds are strong that many of those members will be the same as the ones now.
To get a ruling that the redistricting referendum was unconstitutional because the General Assembly took some legal shortcuts to get on the ballot, Republican plaintiffs will need four votes on the seven-member court. Kelsey and McCullough are also regarded as two of the more conservative voices on the court and would certainly be two of the justices Republican plaintiffs would want to count on — but Kelsey will face reelection from the Democratic majority in the General Assembly whose work is now being questioned. And McCullough will face reappointment soon after, possibly from another Democratic majority.
Let’s not dance around this: Would General Assembly Democrats reelect a justice who ruled that one of their prize accomplishments was unconstitutional?
That’s the question that complicates the Republican quest to get the recent referendum ruled unconstitutional. It has nothing to do with the merits of their legal arguments and everything to do with the unusual way in which Virginia’s Supreme Court justices are named. Only two states — Virginia and South Carolina — put the legislature in charge of naming justices.
There’s probably no good way to choose judges because any kind of selection process is prone to politics, just different politics depending on the method. In 26 states, the governor nominates Supreme Court justices in some fashion (some involve governors picking from a list of recommended jurists, for instance, some don’t). In 22 others, voters elect their Supreme Court justices, with elections as prone to all the hazards of elections for any other office. And then there’s Virginia and South Carolina, where the legislature controls the process. In Virginia (and probably South Carolina, as well) this leads to the usual legislative shenanigans — deals being cut to elevate one particular judicial candidate over another. Is that better or worse than some other method? Who’s to say?
What matters is that this is the process we have and here’s what it could lead to: the prospect of a General Assembly booting a judge off the bench for a partisan disagreement. This appears to have never happened in Virginia since 1883 — at least at the Supreme Court level. The local level might be a different matter, but even there it’s still unusual for the General Assembly to not reappoint a judge.
Of course, there’s already the scenario that some justices might feel political pressure to rule a certain way lest they lose their jobs. This sets up a potential irony: The redistricting map voters just indirectly approved is intended to knock four Republican U.S. House members out of their seats. The Virginia Supreme Court could rule the referendum unconstitutional but at the risk of some justices losing their seats. How’s that for political intrigue?
Let’s review what’s happening here. Republicans have filed five different lawsuits to challenge the referendum, two of which quickly made their way up to the Virginia Supreme Court. The court chose not to intervene before the election, citing a 1912 court decision on a very similar issue — whether a proposed constitutional amendment had been properly put on the ballot.
The plaintiff in 1912, a Lynchburg insurance executive who wanted to run for city treasurer and felt the amendment would hurt his chances, wanted the court to stop the election from happening. The court ruled then that it would not — that the proper time to challenge the election process is after the election has happened. That doesn’t make sense to non-lawyers, but the rationale the court laid out went like this: Judges don’t get involved in the process of legislating; they don’t intervene to tell the General Assembly that a bill it’s about to send to the governor is unconstitutional. It waits until the governor signs the bill into law — and someone files a suit to challenge its constitutionality. In the case of a proposed constitutional amendment, the voters are acting as the governor in deciding whether to reject the measure or make it law. If that amendment rests on an unconstitutional foundation, the court will deal with that once the amendment is enacted, the 1912 court said.
In 1912, the plaintiff never came back. In 2026, the plaintiffs are now at the courthouse door — and aside from the legal questions to be debated, which the court has called “grave,” we have the unspoken political pressures on some of the justices.
We now face the potential for two things we’ve never seen before.
First, none of us has ever seen a court throw out an election for anything other than fraud and irregularities. Neither of those is at play here; the question is whether the election was properly put before the voters. While the court has held since that 1912 ruling that it can rule an election unconstitutional, it’s only done so once — or maybe never, depending on how you’re counting. In 1958, the Virginia Supreme Court invalidated a local ordinance that Arlington County voters had adopted two years before. The issue there was the substance of that ordinance, not the election itself. Here, the issue is not whether gerrymandering is allowed (courts have been pretty lax about that) but whether the legislature checked off all the legal boxes in putting the referendum on the ballot. If the justices find that the General Assembly didn’t follow the law, that would be a political bombshell.
Second, none of us has ever seen a justice denied reappointment for partisan reasons.
There was the 2015 case involving Jane Roush, but that was a different set of circumstances. While the constitution gives the General Assembly the power to name justices, it allows governors to make temporary appointments to fill vacancies when the legislature isn’t in session. In the past, the General Assembly has been deferential to governors’ choices and named those justices to full terms. That was not the case in 2015. When a vacancy occurred, the Democratic governor (Terry McAuliffe) rushed to name Roush. The Republican legislature was not amused and, when it convened, proceeded to name the justice it wanted. Roush wasn’t denied reappointment for her decisions, though; she’d barely made any. She was just caught up in the poor relations between the governor and a General Assembly of a different party.
Before that, you have to go back to 1901 to find a justice who wasn’t reappointed, but the situation was very similar to the one with Roush. A vacancy opened up and Gov. James Hoge Tyler named Archer Arthur Phlegar to the seat. The legislature didn’t like that and instead elected Stafford Whittle. The issue then was geography. The open seat was viewed as a Southside seat; Phlegar was from Montgomery County. The legislature liked Whittle because he was from Martinsville.
Once we peer back into the 19th century, though, we find two — or maybe nine — instances of the General Assembly declining to reappoint justices for partisan reasons. These episodes came in two different batches.
In 1883, at the tail end of the tumultuous years following Reconstruction, the Readjuster Party briefly came to power in Virginia. The Readjusters were a progressive, reformist party unique to Virginia. They wanted to dismantle the conservative establishment they felt had been responsible for the Civil War and so proceeded to clean house of Virginia’s judiciary. There were five justices on the Supreme Court then. One seat was vacant; the Readjusters refused to reelect the other four justices and installed their own. Historian Virginius Dabney writes in his book “The New Dominion” that the Readjusters booted three-fourths of the local judges across the state, as well.
The Readjusters’ policies (which included appointing Black men to public office) provoked a conservative backlash that swept them from office — and into history’s dustbin. Conservative Democrats won control of state government and proceeded to institute the racial oppression we know today as Jim Crow. When those Readjuster justices came up for reappointment in 1895, the Democrats made it clear they didn’t intend to keep any of them on the bench — and put their own favorites on the court instead, cementing their control of state government that lasted until Republican Linwood Holton’s election as governor in 1969. Is it possible that we’ll now see a return to the 19th century politics of punishing justices for court decisions the legislature doesn’t like? All that was history; we now await to see how much new history we make, and whether any of it repeats.
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