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Republican challengers argue the process was fundamentally flawed from the start. Their legal team contends that Democratic lawmakers in the General Assembly cut corners by pushing through a constitutional amendment during a special session, bypassing established procedures designed to protect voters.
During arguments before the court, attorney Thomas McCarthy delivered a sharp warning about what he described as a dangerous precedent. “The proposed amendment is invalid for several reasons, any one of which is sufficient to invalidate the proposed amendment and require invalidation of the vote,” McCarthy stated during the hearing.
He went further, framing the issue as a threat to the foundation of representative government. “It’s often said ours is a government of laws, not of men,” McCarthy continued. “Sadly, that’s not the case if a bare partisan majority can circumvent the constitutional amendment process and undermine the rights of the people in whom all government power ultimately rests – also, that partisan majority can transform our system from a nonpartisan one where the voters elected representatives into a partisan one where the representatives select their voters.”
Republicans are asking the court to uphold the lower court’s ruling, strike down the amendment, and block certification of the referendum results entirely.
On the other side, attorneys representing Democratic leaders insist that both lawmakers and voters followed every requirement laid out in the state Constitution. They argue that the amendment was properly passed and ratified through a legitimate democratic process.
Attorney Matthew Seligman pushed back forcefully against the challenge. “The people did, in fact, validly ratify the proposed amendment last Tuesday,” he told the court, arguing that opponents are attempting to undo a decision already made by voters across the state.
Seligman also emphasized that the challengers are reading restrictions into the Constitution that simply do not exist. According to his argument, the General Assembly has authority over its own procedures, and nothing in the governing document explicitly prohibits the actions taken during the special session.
In a notable moment during the proceedings, the justices acknowledged that courts had previously allowed the referendum to go forward despite ongoing legal disputes. That fact could weigh heavily as the court considers whether to overturn the results after the fact.
Seligman further argued that established legal definitions support the state’s position. He maintained that the amendment was effectively passed ahead of the November election timeline, pointing to federal law and precedent that define Election Day as a single event in November. This interpretation, he suggested, weakens the challengers’ claims, even as early voting played a role in the referendum process.
The case is unfolding against the backdrop of a nationwide political struggle over redistricting, with both parties fighting aggressively to secure an advantage ahead of crucial elections. Control of the U.S. House hangs in the balance, making state-level battles like Virginia’s enormously significant.
Adding to the intrigue, former Virginia Attorney General Ken Cuccinelli has publicly predicted the court will ultimately strike down the map. Speaking in a recent interview, he pointed to what he sees as clear procedural violations and constitutional concerns, even suggesting the decision could be unanimous.
For now, the court’s refusal to grant an emergency stay keeps the lower court ruling in place, but the bigger question remains unanswered. The final decision could either cement a dramatic political shift or wipe out the referendum entirely.
One thing is certain: this legal fight is far from over, and its outcome could ripple far beyond Virginia’s borders.
