The Virginia Supreme Court ruling that invalidated the April 21 special election on redistricting has left Democrats despondent (and angry) while Republicans are jubilant (and relieved).
It’s certainly true that the 4-3 ruling is a profound setback for Democrats in terms of trying to redraw congressional lines this year to produce more seats for their party. However, the ruling can also be read as a long-term Democratic victory in the sense that it provides a judicially embraced historical justification for early voting, a practice that some Republicans are still uneasy about.
In the most recent General Assembly session, Del. Tim Griffin, R-Bedford County, introduced a bill to restrict early voting by requiring early voters to supply a reason for voting early. (It failed, just as a similar bill he introduced did two years ago.) President Donald Trump has been vocal in his belief that voting should be limited to a single day.
The Virginia Supreme Court’s opinion in the redistricting case came from a conservative majority but provides a fascinating historical account of how elections in America have long been multiday affairs — and it was that history that underpinned the decision to void the April 21 election. In any other context, that historical background could be read as a liberal opinion, not a conservative one, because it validates a lot of Democratic arguments, just not the one they were making in this particular case.
(A brief refresher: The Virginia constitution requires that the legislature pass an amendment twice, with a state election in between, before it can go to voters. The General Assembly passed the redistricting amendment for the first time last October, before the November Election Day. Democrats argued that it met the constitutional requirement. Republicans argued it didn’t, because early voting was already underway and more than 1 million ballots had already been cast. Those arguments put Democrats on the side of arguing that early voting wasn’t really part of the election, while Republicans said it was. Those were convenient legal positions for their political positions. However, it was a conservative ruling, authored by Justice Arthur Kelsey, that devoted pages to what ultimately is a Democratic point of view: that early voting is not some new-fangled liberal invention, it has roots that go back to the Colonial era and should therefore be respected as an American tradition.)
The ruling turned solely on the definition of an election — of the Republicans’ three legal objections to the redistricting election, that was the only one the court’s majority addressed.
Kelsey’s opinion has a simple-to-understand explanation for the non-lawyers among us:
“… imagine one of the over one million Virginians who had voted in person before Election Day in 2025 walking into a polling place. The voter says to the officer of election, “I am here to vote in the election.” The officer of election responds, “we are not conducting an election here.” “But that’s why I am here,” the voter replies. “Maybe so, but let me explain,” the officer of election insists, “you can vote in the election, but we are not conducting an election today. Elections are only conducted on Election Day.”
He then engages in a history lesson that should chastise those who want to restrict early voting. He goes back to pre-revolutionary times: “Beginning in colonial days, it was common in Virginia and other colonies for elections to last for days as election officials (usually sheriffs) canvassed the countryside to collect votes during elections,” he writes.
Kelsey quotes from multiple studies on voting practices around the world. One from 1918 reads: “In the royal colonies alone was the English system of taking the poll adopted … that called for an oral vote or a show of hands to decide the result. If any candidate or voter demanded it, a poll must be taken, which might last for days. So great was the solicitude for the voter’s convenience, that in Virginia the sheriff appeared at the planter’s gate and wrote down his vote, without calling him from his plow or his tobacco shed.”
He cites another study of our original voting practices: “There were also differences in the length of elections. States allowed anywhere from one to five days for elections, and Virginia held elections on a different date in each county so that even within a single district the election was held on different dates.”
It was not until nearly a century after the republic’s founding that we settled on having a single day designated as “election day.” Since 2000, we’ve seen a dramatic expansion in what we call “early voting.” Before 2000, this was a custom primarily only in the West. Now 46 states have some kind of early voting period, according to the Center for Election Innovation and Research. Virginia has one of the longest early voting periods in the country — 45 days. Only South Dakota, a ruby-red state politically that has 46 days of early voting, is longer.
It’s that early voting — something Virginia Democrats had pushed for — that undid the Democrats’ victory in the special election. Democrats were forced by circumstances into arguing that the election was legally on just a single day, even though voting takes place for weeks. Kelsey’s opinion concludes that, no, early voting means the election starts the day early voting begins and ends at 7 p.m. on the designated Election Day — which meant that if Democrats wanted the constitutional amendment to count, they should have passed it the first time before Sept. 18, 2025, not the last week of October, by which time more than 1 million votes had been cast.
While Democrats don’t like what that means — the referendum didn’t count because it was unlawfully put on the ballot — they ought to embrace this opinion for the long-term precedents it creates. This opinion, and its historical examples, establish that early voting is rooted in American tradition. Earlier this spring, the U.S. Justice Department argued to the U.S. Supreme Court that Mississippi’s practice of counting mail ballots that are postmarked in time but don’t arrive until after Election Day should be ruled unconstitutional. The court hasn’t ruled, but based on how justices reacted to those arguments, it seems likely the high court will agree. If so, that ruling would impact Virginia, as well, because Virginia does the same thing. (The theory is much like your tax return: It doesn’t have to be at the Internal Revenue Service by April 15; it just has to be postmarked by then.) At the time, Assistant Attorney General Harmeet Dhillon posted on social media: “Election Day means Election DAY!”
This Virginia Supreme Court decision plainly says otherwise — that in Virginia, elections do last for weeks, and our founders would not have seen anything wrong with that, because that’s how things were often done back then.
The U.S. Supreme Court may well say that, at least in federal elections, no votes can be accepted after whatever time the polls close. If they do, the practical consequences in Virginia will be slight. In last year’s governor’s race, those mail ballots that arrived after Election Day accounted for just 0.8% of the total votes cast. In the recent special election, they accounted for an even smaller share — 0.6%.
What’s of far more importance are the “early votes,” cast either in person (the main way) or by mail (a distinctly smaller number). Americans like convenience, and that’s what is winning in elections — convenience. In the 2024 presidential election, most voters in Virginia never went to a traditional Election Day polling booth — only 45.6% of the votes were cast the old-fashioned way. Meanwhile, 40.7% were cast early but in person, while 9.9% came in the mail (and before Election Day). If you add in the post-election mail arrivals, then the percentage moves up to 10.7% of the total.
Trump is against mail voting altogether, but Kelsey’s opinion points out that it, too, has roots that go back to America’s founding and beyond. “In other American colonies,” he writes, citing previous legal cases, “eligible voters sent their votes by proxy to prevent the danger and damage that might result from them leaving their land to vote in the election or to save them ‘the inconvenience and trouble required by a journey to the capital town.’” Kelsey specifically describes these proxy votes as “the precursor to today’s absentee mail ballots.” Put another way, by this opinion that conservatives are now celebrating, early voting (and in particular mail voting) isn’t un-American, it’s very American.
If Democrats wanted to redraw congressional lines, they should have done a better job anticipating the legal challenges and held their special session before early voting began. However, if Democrats wanted to establish a legal precedent in Virginia that early voting fits squarely within the traditions of our state and nation, they just did.
Want more political news and analysis? We’ve got it each Friday in West of the Capital, our weekly political newsletter. Among other things, this Friday’s edition will catch up on who’s in, who’s out and who has endorsed whom in congressional races.
