For an opposing point of view, see “The phrase the attorney general forgot to quote,” by Del. Wren Williams, R-Patrick County.
As a Virginia attorney who has spent decades practicing law in this commonwealth, I believe strongly in our constitutional system of government. In order for that system to work, we must adhere to certain basic principles that protect the rule of law. Legislatures craft the rules that apply to our commonwealth, guided by the Virginia Constitution. Courts interpret those laws, faithful to the plain language of those standards and their own precedent. The people of Virginia ultimately have the last word, empowered to modify the constitution by popular vote. These basic principles have governed our commonwealth since its inception and ensure that our democracy continues to function.
We currently face another contentious challenge to our constitutional democracy — the validity of a constitutional amendment regarding congressional redistricting that was recently approved in a statewide referendum by the people of Virginia. The legality of that amendment has been challenged and will soon be resolved by the Virginia Supreme Court. I have read the pleadings filed in that case with care, given the significance of this issue and its impact on our democracy. My conclusion is straightforward: the Supreme Court of Virginia should reverse the Tazewell Circuit Court’s recent injunction preventing the redistricting amendment from going into effect. The redistricting amendment should stand, as it is consistent with the Virginia Constitution, Supreme Court precedent and the fundamental principle that the people ultimately define the basic standards the govern our democracy.
Article XII of the Constitution of Virginia sets out the exclusive process for amending our founding charter. That provision is, by design, spare and demanding: a majority of each house of the General Assembly must first approve any proposed amendment to the Constitution; a general election of the House of Delegates intervenes; a newly constituted General Assembly must then approve the proposal a second time; and the people of the commonwealth render the final verdict at the ballot box. The redistricting amendment at issue here adhered to that process.
The General Assembly approved the amendment on October 31, 2025. The general election occurred on November 4, 2025. The newly elected House and the Senate approved the amendment again in January 2026. The people of Virginia then approved the amendment in a free and fair election held on April 21, 2026.
Each step mandated by the Constitution took place, in the order Article XII requires. Nonetheless, on the day after the special election approving the amendment, the circuit court in Tazewell County declared the entire process void. It reached that result by importing three requirements that appear nowhere in the Constitution of Virginia. Each of those findings should be rejected by the Virginia Supreme Court.
I. Early voting does not alter the meaning of an “election”
The most consequential error below was the court’s decision to treat the start of early voting as the constitutional “election” that Article XII requires to intervene between the two legislative votes. That holding cannot be reconciled with the plain language of the Constitution. Article IV, Section 3 fixes the election of House members on “the Tuesday succeeding the first Monday in November.” That is a constitutional command. Statutes governing how ballots may be cast — by mail, in person, or in advance — regulate the manner of voting. They do not, and cannot, redefine when the constitutional election occurs.
Virginia has had absentee voting in some form for more than a century. The General Assembly first authorized it during World War I so that Virginia soldiers serving overseas could participate in elections back home. That history matters here, because it confirms what every voter already understands: casting a ballot before Election Day is a convenience, not a separate election. The election still occurs on the day the Constitution names. Ballots cast in advance are simply held, sealed, and counted on that day along with those cast on Election Day. The Supreme Court of Virginia recognized exactly that structure nearly a hundred years ago in Moore v. Pullem, and the General Assembly’s modern statutes follow the same model — votes cannot be tallied until the polls close on Election Day. That fact resolves the issue here — an “election” occurs on “the Tuesday succeeding the first Monday in November” regardless of ballots cast, but not counted, prior to that date. The General Assembly complied with this clear standard of the Virginia Constitution by passing the proposed referendum both before and after “elections.” The referendum was therefore properly placed before the people of Virginia on April 21.
II. Rules governing legislative procedure are not constitutional commands
The circuit court’s second basis for invalidating the amendment rests on the General Assembly’s internal resolutions governing the scope of the 2024 Special Session, in which the first vote to approve the proposed redistricting amendment occurred. The court itself acknowledged that no constitutional or statutory provision prohibited the continued reconvening of that Special Session. Yet it then declared the amendment void because, in the court’s view, the legislature had passed the amendment in a special session that exceeded the agenda its own resolutions had established.
There is no legal basis for the circuit court’s conclusion. Article IV, Section 7 commits to each house the authority to “settle its rules of procedure.” Those rules can be amended or suspended by the body that adopted them. Courts have neither the statutory authority nor the institutional competence to enforce internal legislative rules of procedure as if it were constitutional text. From Wise v. Bigger to Albemarle Oil & Gas Co. v. Morris, the Supreme Court of Virginia has repeatedly declined to invade the internal procedural choices of a coordinate branch. It should similarly decline to so here and reject this second basis for invalidating the referendum.
III. The publishing provision of Code § 30-13 cannot overcome the plain language of Article XII
The circuit court held that the General Assembly’s alleged failure to comply with Code § 30-13 — a statute directing the Clerk of the House of Delegates to publish proposed amendments 90 days prior to a referendum at which they will be considered by the voters of Virginia and directing circuit court clerks to publish them on courthouse doors — rendered the second legislative passage ineffective under Article XII. That holding inverts our constitutional hierarchy.
Some history is instructive here. Section 30-13 was enacted in 1927 to implement Section 196 of the Virginia Constitution of 1902, which required that proposed amendments “be published for three months previous to the time of such election.” Publication was accomplished by posting proposed amendments on the door of each county courthouse. When Virginia adopted the modern Constitution of 1971, the framers deliberately removed that publication requirement, replacing it with the 90-day notice provision. Delegate D. French Slaughter, Jr. explained the choice on the floor: the goal was public awareness, and a ninety-day delay between final legislative passage and submission to the voters was deemed sufficient to provide such notice. Professor A. E. Dick Howard, the principal architect of the 1971 Constitution, then drew the doctrinal consequence in his *Commentaries*: because publication was deliberately omitted, “an amendment cannot be challenged on the ground that publication was insufficient.”
The courthouse-door publication requirement reflected the reality of rural Virginia at the turn of the twentieth century — the courthouse was the information hub of the county. Citizens rode in by horse and wagon, sometimes only once a month, to do their banking, file their deeds, hear the news, and read the public notices tacked to the courthouse door. A piece of paper nailed to that door was, in a real sense, the county newspaper. Requiring proposed constitutional amendments to be posted there for three months before an election was a sensible way — in 1902 — to ensure that ordinary Virginians had a fair chance to learn what they would be voting on.
Things have obviously evolved since 1902. Virginians today get their news from television, radio, daily newspapers, websites, social media, push notifications and email. They do not learn about constitutional amendments by riding into town on a wagon and reviewing documents posted on the courthouse door. The 1971 framers understood that, and they replaced the obsolete posting requirement with something better suited to modern communications: a guaranteed ninety-day window between final legislative passage and the vote, during which the proposal is reported, debated and dissected in every medium Virginians actually use. The redistricting referendum complied with the 90-day notice provision. It was passed by the General Assembly on January 16, 2026 — 95 days before the April 21, 2026, referendum. Hence, the referendum does not violate Section 30-13.
A statute enacted to implement a constitutional requirement cannot survive as a constitutional requirement after the underlying provision has been repealed. As the Virginia Supreme Court observed in Black v. Trower, a constitutional guarantee subject to legislative revision would be “a dead letter.” To hold otherwise would mean that the framers of the 1971 Constitution failed to do what they plainly did — and that the General Assembly, by leaving an old implementing statute on the books, somehow re-imposed a constitutional command the people had removed. Just weeks ago, the 2026 General Assembly officially repealed the publication requirement of Section 30-13. If the validity of a constitutional amendment truly depended on Section 30-13, the legislature could not have repealed it without amending Article XII. This action by the legislature confirms what the constitutional history already shows: Section 30-13 was always administrative scaffolding, never a condition of constitutional validity.
IV. The people of Virginia, not courts, decide what the Constitution provides
Underlying all three errors below is a deeper misallocation of authority. Article XII of the Virginia Constitution assigns the final decision on a proposed constitutional amendment to the people of the commonwealth, not to the courts. When a circuit court imports extra-constitutional conditions that prevent a proposal from ever reaching the ballot or seeking to invalidate votes cast in a referendum, it does not enforce Article XII. It rather substitutes its own judgment for that of the people of Virginia in explicit violation of the Constitution.
My views on the standards of law that control the question pending before the Supreme Court are just that — views of the law, not the underlying policy of the referendum. Reasonable Virginians can disagree, and disagree strongly, about whether mid-decade redistricting is wise policy. For weeks prior to April 21, we had a robust debate about that question, with persuasive arguments both for and against the referendum presented to the people of Virginia. But the question before the Supreme Court of Virginia is not whether the amendment is wise. It is whether the process the Constitution prescribes for amendments was followed. It was, which is why the Supreme Court of Virginia should reverse the judgment below and let the people of Virginia do what Article XII authorizes them, and only them, to do — decide.
Heaphy is an attorney practicing in Virginia. He served as United States Attorney for the Western District of Virginia from 2009-2014 and is now a partner at Heaphy, Smith, Harbach & Windom, LLP.
