On May 8, the Supreme Court of Virginia issued an opinion striking down Virginia Democrats’ redistricting amendment and keeping in place Virginia’s independent, bipartisan redistricting commission established by voters in 2020. As a matter of law, the Court got it right. The Constitution of Virginia delineates a specific and rigorous amendment process — a process that the General Assembly did not properly follow. However, the decision seems to have generated so much rage on the political left that many are taking aim at the justices themselves, rather than the merits of the ruling. These attacks seem to either intentionally or unintentionally grossly misinterpret the legal rationale of the ruling and exhibit the worst form of incoherent tribalistic brinkmanship. In a democracy, disagreement over constitutional interpretation is inevitable, but when critics fail to grasp the basic legal issues involved, they do a disservice to the legal system.
The legal basis for the Court’s opinion is robust and virtually airtight. The question before the Court was whether the General Assembly complied with the amendment process — a process that is markedly difficult. Article XII of the Constitution of Virginia requires the General Assembly to pass a proposed amendment twice — once prior to an intervening general election and again following it. This gives the voters a chance to oust legislators who may take an unfavorable stance toward a pending amendment. In this case, the General Assembly first passed the proposed amendment Oct. 31 — four days before Election Day and 42 days after early voting began. At that time, more than 1.3 million Virginians had already voted.
The “election” in question did not merely take place on Election Day — it was underway when Democrats first passed the amendment. This is inconsistent with Article XII, which requires passage prior to the next general election. The term “election” invariably encompasses early voting — this is common sense. The Court’s ruling, therefore, did nothing more than uphold the idea that the term “election” refers to the “combined actions of voters” — a principle consistent with a unanimous decision of the Supreme Court of the United States, Foster v. Love. The Court did nothing radical — it simply reaffirmed three decades of settled law.
While the dissent, written by Chief Justice Cleo Powell, raises some noteworthy and reasonable objections, Attorney General Jay Jones (D) instead resorted to outlier legal theories. Apparently not content with the unconvincing claim that early voting is not part of a general election, Jones somehow managed to advance an even more legally indefensible argument in the Commonwealth’s emergency appeal to the Supreme Court of the United States. The brief, filed Monday, relied in part on an astonishing legal theory — known as the independent state legislature doctrine — that has been rejected by the Supreme Court on at least four separate occasions. On Friday, the Supreme Court dispensed with the application, making it obvious that Jones’ Hail Mary legal theory holds little merit.
If fringe legal arguments were not bad enough, some Democrats on a private phone call with House Minority Leader Hakeem Jeffries are now floating the idea of eviscerating the entire Virginia judicial system by lowering the mandatory retirement age for justices and effectively firing the entire Court. Though thankfully, Gov. Abigail Spanberger (D) and Senate Majority Leader Scott Surovell, D-Fairfax have stated they are not in favor of these unprecedented changes, the mere suggestion of such an upheaval is egregious and Orwellian. Whether or not the Court’s decision was correct can be debated to an extent, but threatening justices’ careers based on a disagreement with a single ruling is fascistic despotism that has no place in a free country. The independence of the judiciary should not be a partisan volleyball. Democrats over the past year have correctly called out President Donald Trump’s unhinged rants attacking federal judges, but now, some of those same Democrats seek to undermine the judicial independence they once championed.
While Jones and other partisans have baselessly lambasted the Court as “Republican-led,” it is not as if the bench is actually stacked with right-wing ideologues. Justice D. Arthur Kelsey, the author of the majority opinion, is a widely respected jurist initially appointed to the bench by former Gov. Mark Warner (D) and unanimously elected to the Court by the General Assembly. By attacking the honor of a man as accomplished and universally admired as Justice Kelsey, Democrats have given away the game. This is not a principled disagreement with the Court’s ruling — it is a disingenuous political hit.
In a constitutional system defined by judicial review, debates will naturally arise about the merits of a court’s ruling. It is important, however, in debating an opinion of a court that one actually understands the basis of the court’s decision. While somewhat cumbersome, taking the time to read all 46 pages of the Court’s decision in Scott v. McDougle puts most — if not all — of the political world’s hollow objections to rest. Justice Kelsey devotes the entirety of Part II.D of the opinion to responding to potential concerns over the Court’s decision. Political commentators and politicians would do well to engage more directly with the Court’s opinion before advancing criticism. Whatever the peanut gallery says, the Court made the right call. In doing so, the majority reaffirmed a foundational principle of constitutional government — that ours is a government of laws, and not of men. In Virginia, constitutional limits do not yield to political expediency.
Joshua Hawkins is a senior associate opinion editor for The Cavalier Daily. He can be reached at opinion@cavalierdaily.com.
The opinions expressed in this column are not necessarily those of The Cavalier Daily. Columns represent the views of the authors alone.
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