The year 1912 was a significant one.
The Oreo cookie was invented. The Girl Scouts were founded. The Titanic sank. Fenway Park opened in Boston. Arizona became a state. Woodrow Wilson was elected president.
We are now 114 years removed from those events and our culture today remains shaped by all those things.
We in Virginia are still touched by one other thing that happened that year. Lynchburg insurance executive James Scott was making plans to run for city treasurer the next year. He expected an open seat because the state constitution that had been adopted a decade earlier imposed term limits on city treasurers and commissioners of the revenue. A proposed constitutional amendment to allow those officers to run again had been defeated two years before, so Scott thought himself free to start making political plans. Then the legislature surprised him: It passed a new constitutional amendment to do away with term limits.
Normally, the legislature would have to pass the amendment twice, with an election in between, but the General Assembly found a way around that. It cited the legislature’s vote back in 1908 — the first vote that had led to the defeated 1910 amendment. That meant using the same vote twice, and reusing it after the measure had been defeated already. Scott didn’t think that was right, so he sued to block the 1912 referendum as unconstitutional.
The case went all the way to the Virginia Supreme Court. Scott lost — and the way he lost has a direct impact on us today.
The court’s ruling, in a case memorialized as Scott v. James, held that the Virginia Supreme Court couldn’t rule on the constitutionality of an election until after it had been held. If that sounds familiar, then you get an A for understanding why the Virginia Supreme Court this year didn’t rule on whether the April 21 special election on redistricting was constitutional until after the votes had been cast.
Republicans had tried to force a ruling before the vote, but the justices — sticklers for protocol — cited that 1912 ruling as their reasoning for waiting. Our legal system is built not just on laws, but on precedents for how those laws are interpreted. Every now and then a court overthrows precedent — Brown v. Board of Education overruled Plessy v. Ferguson, Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade — but generally the legal system pays heed to the rulings that have come before. For the law to work, it needs to be consistent and predictable. Relying on previous rulings helps make it consistent and predictable.
That 1912 ruling was authored by Richard Cardwell, a former speaker of the House from Hanover County. Cardwell’s logic, which was not unique to him but relied on other rulings well before him, was that the process of amending the constitution is a legislative process. Courts would never tell the governor that a bill the legislature just passed is unconstitutional; they would wait until the bill was law and someone challenged before issuing a ruling. Cardwell’s rationale was that in the case of a constitutional amendment, voters were acting as the governor in deciding whether to make something part of the fundamental law. Therefore, the election was part of the legislative process and courts shouldn’t get involved until the measure was passed and someone challenged what had just happened. By that standard, the Supreme Court couldn’t — wouldn’t — rule on whether the proposed amendment had been properly placed on the ballot until after the vote was held. That was the thinking Cardwell and his fellow justices had in 1912, and it was the thinking that his successors followed again in 2026.
The difference is that in 1912 Scott never came back to the court to ask for a ruling, while in 2026 the Republican plaintiffs did — and when a majority of justices this time decided that the General Assembly was operating on the wrong schedule to pass the amendment, then the whole election came undone.
That means more than three million votes just got ruled null and void. Even if you think the proposed redistricting was a bad idea and the lobster district was a particular abomination, the sight of an election being tossed out ought to be troubling. There have been instances before where courts have ruled that the substances of what voters approved was unconstitutional, but the finding that the election itself was unconstitutional is a different species of ruling altogether.
Was there another way? It doesn’t matter now — until someone has Hermione Granger’s Time Turner or Dr. Who’s time-traveling phone box. And maybe now it’s clear enough to all what the rules are — early voting counts as part of the election — that no future legislature will make this same mistake again.
That makes what I’m about to offer essentially an academic exercise. Here, though, is the after-the-fact rationale for why the court should have disregarded the 1912 precedent and found a way to rule before the election on whether it was properly placed on the ballot.
Lawyers like to say that if the facts are against you, you should argue the law. If the law is against you, you should argue the facts. If both are against you, you should just argue. I’m going to go with the second option.
The court this year was on solid legal ground in waiting until after the election to rule, but, factually speaking, so much has changed since 1912 that maybe that Scott v. James precedent shouldn’t be the controlling one.
A few particularly: A much larger swath of society is involved in an election today than in 1912.
In 1912, only men — and mostly white ones at that — were allowed to vote. Today, the electorate is much more diverse.
I don’t know how many Virginians were registered to vote in 1912, but we know how many did vote. In that 1912 presidential election, 6.5% of the population cast ballots, which gives you some sense of how restricted the electorate was back then. In the 2024 presidential election, Virginia saw 24.9% of the population cast ballots. Even if you account for children and others who aren’t eligible, that’s still a strikingly low percentage, but let’s not get hung up on that. The point is that the share of the population taking part in an election is about four times bigger.
Here, though, is what I’d consider the most compelling reason for why the Virginia Supreme Court should have ruled before the vote. In 1912, that year’s election was going to happen anyway, regardless of whether the constitutional amendment repealing term limits was on the ballot. Voters were already going to be at the polls to pick a president and a congressman. The amendment was just an add-on.
The April 21 special election, though, was only being held to vote on the proposed redistricting amendment. If the court had said beforehand that the election had been unlawfully called, we wouldn’t have had to bother. Instead, the court let the election go forward — and taxpayers are being stuck with the bill, regardless of the outcome. For those who voted “no,” they both lost and still had to pay. For those who voted “yes,” they eventually saw their victory undermined, and they still had to pay, too. We all had to pay, not directly with a bill, but indirectly through the taxes we paid.
The General Assembly set aside $5 million to pay for the referendum, but the total costs are expected to be higher — we just won’t know how much until later this summer. Localities are in the process of totaling up their expenses to submit to the state to find out how much they’ll be reimbursed. In Lynchburg, registrar Patricia Jones says it cost the city $84,000 to run an election that, legally, never happened. That’s more than enough to pay a teacher or a police officer or a firefighter — or send back to taxpayers, if you’re in the mood.
Even if the state winds up covering all those costs, that’s still $5 million that we didn’t have to spend, but did. That’s money the state could have saved if the court had told us earlier that the election rested on an unlawful foundation. Justice Cardwell didn’t have to think about a bill like that back in 1912. Should our justices now have done so?
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