“The irreparable harm resulting from the Supreme Court of Virginia’s decision is profound and immediate,” the lawmakers’ filing reads.
“By forcing the Commonwealth to conduct its congressional elections using districts different from those adopted by the General Assembly pursuant to a constitutional amendment the people just ratified, the Supreme Court of Virginia has deprived voters, candidates, and the Commonwealth of their right to the lawfully enacted congressional districts.”
The filing comes three days after Virginia’s high court ruled 4-3 that the constitutional amendment authorizing mid-decade redistricting violated procedural requirements in the Virginia Constitution and therefore could not take effect, despite being approved by voters on April 21.
That decision left in place the congressional map adopted in 2021 after Virginia’s bipartisan Redistricting Commission deadlocked. The current map, approved by the court at the time, is viewed as politically balanced and currently favors Democrats in six of the state’s 11 congressional districts and Republicans in five.
The amendment would have allowed the Democratic-controlled General Assembly to redraw Virginia’s congressional districts in response to similar efforts already underway in several Republican-led states. The new maps were projected to heavily favor Democrats in as many as 10 districts.
Writing for the majority last week, Supreme Court of Virginia Justice Arthur Kelsey said the amendment process violated the Virginia Constitution because lawmakers first passed the proposal without a 90-day public notice required by state law before the “next general election” took place.
The court concluded that the election included Virginia’s early-voting period, which had already begun when lawmakers first approved the amendment. The majority described partisan gerrymandering as a threat to democracy and said the constitutional violation “incurably taints” the referendum results.
Democrats now argue that the Virginia court fundamentally misread both state and federal election law.
“The Court overrode the will of the people who ratified the amendment by ordering the Commonwealth to conduct its election with the congressional districts that the people rejected,” the emergency application states.
The filing repeatedly argues that elections under federal law occur on a single election day, even when states permit weeks of early voting beforehand. Attorneys say the Virginia court improperly expanded the meaning of “election” beyond its traditional legal definition — a key issue the court debated during oral arguments last month.
“The Supreme Court of Virginia’s decision was interwoven with a grave misinterpretation of federal election law,” the filing says.
The appeal also cites the U.S. Supreme Court’s 2023 ruling in Moore v. Harper, which limited how far state courts can go when interpreting election laws affecting federal races.
Virginia Democrats argue the state court “transgressed the ordinary bounds of judicial review” in its interpretation of the state Constitution. The filing further says the ruling creates logistical problems for election officials ahead of the November midterms.
Virginia’s congressional primary was recently moved from June to Aug. 4 because of the ongoing litigation, and election officials face approaching deadlines for ballot certification and absentee voting.
“This Court should act now to preserve the status quo while it considers the grave federal questions the decision below raises,” the application states.
House Minority Leader Terry Kilgore, R-Scott, one of the appellants in the case, criticized Democrats for their effort after losing before the state’s Supreme Court.
“The Supreme Court of Virginia has already ruled that Virginia Democrats violated the Virginia Constitution,” Kilgore said in a statement. “Now, rather than accept that ruling, they are running to the U.S. Supreme Court to overturn it. It’s time to stop the legal games, pass a budget for Virginians, and focus on the November midterms.”
Carl Tobias, a constitutional law professor at the University of Richmond, said the appeal raises significant constitutional questions but faces an uphill climb at the nation’s highest court.
“Most of these arguments are not grounded in law, as far as I can tell,” Tobias said. “We’ll see what the U.S. Supreme Court says about them, but I don’t think any of that is really compelling. I think those are just legal arguments they’re making, as I understand it. It is an emergency appeal that’s appropriate to pursue, but whether they’ll win remains to be seen.”
It’s unclear when or if the high court will take up the appeal. Justices last month cleared the way for Louisiana to redraw its congressional districts, as Tennessee and other states rush to reshape their maps ahead of midterm elections Nov. 3.
Virginia Mercury is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Virginia Mercury maintains editorial independence. Contact Editor Samantha Willis for questions: info@virginiamercury.com.
