Virginia Democrats are moving forward with plans to gerrymander their way to four more congressional seats — but they need help from the state’s top court.
After a lower court blocked Democrats’ efforts to amend the state Constitution and redraw federal congressional lines ahead of this fall’s midterm elections, the Virginia Court of Appeals requested the Virginia Supreme Court weigh in.
That puts the fate of the map — and potentially congressional control after the 2026 midterms — in the hands of a group of justices that observers say can be hard to predict.
Political and legal experts in Virginia agree the state Supreme Court is not overtly ideological, with many describing it as “small-c conservative,” leaning heavily on tradition and precedent rather than handing down ideologically right-wing rulings. And many observers say the court is wary of wading too heavily into political fights. But this time, it’s unavoidable.
“It’s kind of a state Supreme Court tradition to stay away from political matters whenever they can. They like to leave the legislating to the legislature. So this is going to be a really interesting test of that tradition,” said Carolyn Fiddler of the Democratic Attorneys General Association, who attended William & Mary Law School in Virginia and worked in state politics.
Virginia is one of only two states where the legislature elects Supreme Court justices. Because the state has had divided control for much of the past quarter century, the balance of the court’s justices were appointed by bipartisan compromise. The court’s current seven members include one justice who was elected when Democrats had sole control of the General Assembly, three when Republicans controlled both chambers and three when control of the legislature was split.
“I voted for all these people – every one of them — and I don’t think any of them are overly political. And they shouldn’t be,” said Virginia House of Delegates Minority Leader Del. Terry Kilgore (R), who said he thinks the court will rule in his side’s favor. “They just should follow the law. If they do, we win.”
The question before the Virginia Supreme Court is not if, but when, new maps are allowed to go into effect — and whether they’ll be in place for this year’s midterms.
Gov. Abigail Spanberger (D) signed legislation scheduling a statewide referendum for April 21 last week, asking voters to grant state lawmakers the power to redraw federal Congressional lines immediately. It came a day after Democratic state lawmakers unveiled proposed maps that aim to tilt the congressional map 10-1, potentially handing Democrats four more House seats and leaving just one Republican in the federal delegation.
But a wrench was thrown in their plans when a circuit court judge in conservative Tazewell County ruled late last month that Virginia Democrats did not follow proper procedure when initiating the constitutional amendment.
To change the Virginia Constitution is a multi-step process, requiring approval by two separate sessions of the General Assembly with a statewide general election for the House of Delegates taking place in between those sessions.
Judge Jack Hurley ruled that because early voting was already underway when the General Assembly first passed the amendment last October, it should not count as the first step. If the Virginia Supreme Court agrees, the earliest the state could enact new maps is after the next legislative election in 2027 — a blow to Democrats’ hopes of winning back the House this fall.
It’s a question both sides hope the top court weighs in on – and quickly.
“If they answer the question that there was not an intervening election, which, that’s the big one … then the redistricting is dead,” said former Del. Tim Anderson (R), and who is a practicing attorney. “If they say that there was an intervening election, then the redistricting amendment will go forward.”
The next opening on the court’s docket for a new case is March 2, a tight timeline since that’s the same week early voting is scheduled to begin.
Jay O’Keeffe is a left-leaning appellate attorney based in Roanoke who has argued before the top court. He said it is not uncommon for the justices’ opinions to reference Sir William Blackstone’s “Commentaries on the Laws of England,” the 18th century treatise often cited by those who interpret the law through an originalist, conservative-leaning reading of the law.
“The justices I’ve dealt with don’t seem to see themselves as political actors,”O’Keeffe said. “But you could imagine a more progressive court … approaching the whole job of judging in a different way.”
The question both Democrats and Republicans hope the Virginia Supreme Court will answer is whether the April referendum vote can proceed.
“In matters like this, the Supreme Court is going to try to call it right down the middle, and not on a political basis,” said Steve Emmert, a retired appellate lawyer. “What the parties need now is certainty, and they need it soon.”
