A Virginia Supreme Court ruling that invalidated a voter-approved redistricting referendum has set a dangerous new precedent — and the Democrats whose voters were disenfranchised are barely putting up a fight, according to a scathing new analysis.
Last month, Virginia voters approved a new congressional map that would have left Republicans with a single safe seat in the southwest of the state. It was part of a broader Democratic response to Trump-backed gerrymandering efforts nationwide.
On Friday, in a 4-3 decision along partisan lines, the state's highest court threw the whole thing out, The New York Times' Jamelle Bouie wrote.
The ruling hinged on a definition. Virginia Republicans argued the first legislative vote on the amendment happened too close to the election because early voting had already begun. The court agreed, broadening the legal definition of "election" to include the entire early voting period — a move the dissent called "in direct conflict with how both Virginia and federal law define an election."
He then blasted the local Democrats who seemed to roll over and accept the decision.
"Key Virginia Democrats quickly acquiesced to the decision," he wrote. "Don Scott, the speaker of the House of Delegates, said, 'We respect the decision of the Supreme Court,' while Gov. Abigail Spanberger said that she was 'disappointed' but didn’t challenge the ruling or the court’s authority.
"This is a mistake.
"To start, the ruling is absurd. As the dissent notes, 'The majority has broadened the meaning of the word ‘election,’ as used in the Virginia Constitution, to include the early voting period. This is in direct conflict with how both Virginia and federal law define an election.'"
The dissent didn't stop there, Bouie wrote. The majority's new definition, it argued, "creates a causality paradox: An election is a process that begins with early voting, but early voting must precede an election by 45 days." The result, the dissent concluded, is "an infinite voting loop that appears to have no established beginning, only a definitive end: Election Day."
The practical consequences extend beyond redistricting. Virginia's constitution bars courts from pulling voters into judicial proceedings "during the time of holding any election." Under the majority's newly expanded definition, courts "could not mandate that voters attend trials in virtually any capacity, other than as a criminal defendant" for the entire duration of any election — a result that would throw the state's judicial system into chaos.
Making the ruling harder to defend, the court had an opportunity to halt the referendum process earlier this year and declined. Invalidating the result only after voters approved it, the analysis notes, suggests "the law here was less important than the politics."
The Democratic response has drawn as much criticism as the ruling itself. House of Delegates Speaker Don Scott said simply that Democrats "respect the decision of the Supreme Court." Gov. Abigail Spanberger called herself "disappointed" but stopped well short of challenging the court's authority.
Columnist Jamelle Bouie, writing in the New York Times, called that posture "a mistake" — and went further, questioning the court's authority to void a sovereign act of the people in the first place.
"On what basis can the State Supreme Court, a creature of that Constitution, invalidate a sovereign decision of the whole people?" Bouie wrote. "The court may have the right to say what the law is, but this doesn't extend to a veto over the people's right to change the fundamental rules of their political system."
Bouie reached back to the founding era to make the point, citing Pennsylvania jurist and Constitutional Convention delegate James Wilson, who argued that "the supreme, absolute, and uncontrollable power remains in the people" and that "the people may change the Constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them."
It was under that same theory, Bouie noted, that Americans scrapped the Articles of Confederation in favor of the Constitution itself.
The ruling lands against a backdrop of rapid democratic erosion, he wrote. The Supreme Court last week gutted Section 2 of the Voting Rights Act in Louisiana v. Callais, opening the door for Republican-led Southern states to erase majority-minority districts. Tennessee's Republican governor just signed a map dismantling the state's only majority-Black congressional district. And Indiana lawmakers who refused to go along with Trump's redistricting push lost their primaries, demonstrating the president's grip on Republican state politics.
"Democrats must meet the moment," Bouie concluded. "Or move over for people who will."