Does Virginia Have a Kangaroo Supreme Court?

The congressional balance of power could come down to whether the Old Dominion’s highest tribunal proves itself a kangaroo court. Arguments today before Virginia’s supreme court find the justices being asked by the Democrats to redefine the word election in order to legitimize a partisan gerrymander of the state’s congressional map and tip control of the House. That’s because, the GOP avers, Democrats traduced the state constitution to redraw the map.Virginia’s charter — in the drafting of which Framers like Madison, Jefferson, and George Mason had a hand — sets forth the steps under which amendments can be enacted. A change to the constitution can be proposed in any given session of the state legislature. Then, per Article XII, the proposal must be “referred to the General Assembly at its first regular session held after the next general election of members of the House of Delegates.”That means an election needs to be held before the amendment can move forward, giving voters a chance to decide the merits of the proposal and the legislators who made it. Virginia Democrats paid lip service to this when they passed the redistricting scheme in October 2025. The measure — criticized by the GOP as misleading — called to “restore fairness in the upcoming elections,” then set up maps that give 91 percent of the state’s House seats to Democrats. The proposal for a referendum on the gerrymander, which reversed an amendment that in 2020 set up a bipartisan redistricting commission, passed both houses of the legislature on October 31. The Democrats’ haste to get the amendment through left no time to observe a state law requiring public notice of proposed amendments three months ahead of elections. Virginia’s state election had already started, with early voting, on September 19. The amendment went on to be approved by the legislature in January, then on April 21 by a bare 51.4 percent of voters in last week’s referendum. Yet the results are on hold after a state judge found the results invalid, in part as a result of constitutional and procedural errors. The Democrats’ attempts to justify these legal machinations during Monday’s arguments before the state high court amounted to a master class in contortion.A lawyer for Democratic lawmakers, Matthew Seligman, waved away the concern that the election had already begun, with Virginians casting early ballots some six weeks before the amendment was passed in the legislature. The election was on November 4, he asserted. Mr. Seligman conceded some of these early voters “might be upset or regret their vote.” That, though, is “a problem that someone accepts for voting early.” In other words, flake off.Mr. Seligman did concede that an amendment proposal passed at 6 P.M. on Election Day itself would “probably not” pass muster. Yet his lack of concern for early voters is surprising from an advocate for the party that has embraced the cause of early and mail-in balloting. This disregard for voters belies the claim advanced by, say, a Democratic activist like Marc Elias, that the GOP, by challenging the referendum’s legality, is defying “the will of the voters.”What, too, of the state law requiring county clerks to give notice of proposed amendments 90 days before an election? Mr. Seligman suggested that there were “deeper structural constitutional reasons” for that measure to be ignored by the Democrats. Got that? So much for the rule of law. On this head, Justice Stephen McCullough added, seemingly in approval of Mr. Seligman’s point: “Who goes to the courthouse to get their news anymore, anyway?”If that nonchalance reflects the high court’s views, it suggests that the justices could be willing to let partisan considerations trump the plain language of the Old Dominion’s laws and constitution. In that case, the Democrats’ gerrymander could be in safe hands. Yet a lawyer for the GOP, Thomas McCarthy, reminded the justices of those who cast early ballots. “None of these voters had any idea this was coming, and that’s not how this process is supposed to work.”

Does Virginia Have a Kangaroo Supreme Court?

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