by Emilio Jaksetic

On December 5, 2025, Paul Goldman’s “Outfoxing Judge Thomas: An Alternative Redistricting Strategy for VA Democrats” was posted on Bacon’s Rebellion. Mr. Goldman presented a strategy that he claimed could avoid potential legal barriers to efforts by Virginia Democrats to amend the Virginia Constitution to return the redistricting authority to the General Assembly and allow it to change Virginia’s Congressional Districts before the 2026 elections.

In this article, I will discuss Mr. Goldman’s proposed strategy (hereinafter “the proposed strategy”) and explain why it is legally flawed.

The proposed strategy relies on a combination of three elements:

(1) reliance on a single passage of Virginia Constitution, Article II, Section 6;

(2) a claim that the broad, comprehensive nature of the General Assembly’s legislative power gives it the inherent authority to (a) hold hearings to develop testimony that shows the current Congressional Districts are “unfair,” (b) issue a declaration that the Congressional districts are
“unfair,” and that the General Assembly has the right and duty to fix the problem; and (c) then “present a bill creating the new fair districts meeting Section 6 requirements for Governor Spanberger’s signature soon after her inauguration”; and

(3) the claim that “[b]y precedent, a federal court is therefore obligated to adopt this GA legal position on Section 6 since a Virginia state court would do likewise.”

I will address each element in turn, and explain why these elements fail to provide legal support for the proposed strategy.

(1) Virginia Constitution, Article II, Section 6. The proposed strategy’s reliance on a quoted passage from Article II, Section 6 is misplaced. Why? Because the quoted passage cannot be fairly relied on without also considering: (a) the entirety of Article II, Section 6 and Article II, Section 6-A; (b) the legal significance of the amendment of Article II, Section 6 and
the adoption of Article II, Section 6-A in 2020; and (c) the legal significance of the Virginia Supreme Court’s December 28, 2021, decision on Virginia’s Decennial Redistricting.

The proposed strategy relies heavily on the following passage of Virginia Constitution Article II, Section 6:

Every electoral district shall be drawn in accordance with the requirements
of federal and state laws that address racial and ethnic fairness, including the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and provisions of the Voting Rights Act of 1965, as amended, and judicial decisions interpreting such laws.

That passage is insufficient to support the proposed strategy. Why? Because it ignores the first sentence of Section 6 which states: “Members of the House of Representatives of the United States and members of the Senate and of the House of Delegates of the General Assembly shall be elected from electoral districts established pursuant to Section 6-A of this Constitution.” A reading of Article II, Section 6-A shows the following:

(a) the Virginia Redistricting Commission, not the General Assembly, is responsible for drafting any proposed redistricting plan. Article II, Section 6-A(d);

(b) the General Assembly votes to accept or reject a proposed redistricting plan submitted by the Commission, but the General Assembly is prohibited from making amendments to it. Article II, Section 6-A(e);

(c) if the General Assembly rejects the proposed redistricting plan or fails to adopt it within 7 days of it being submitted to the General Assembly, the electoral districts will be established by the Virginia Supreme Court (Article II, Section 6-A(f)); and

(d) if the Commission fails to submit a timely proposed redistricting plan to the General Assembly, the electoral districts will be established by the Virginia Supreme Court (Article II, Section 6-A (g)).

The proposed strategy cannot rely on one sentence in Section 6 to make Section 6-A “disappear” and avoid the need to deal with Section 6-A — which clearly shows the General Assembly has no authority to (a) propose or enact its own electoral plan; (b) amend or modify any electoral plan offered by the Commission; (c) amend or modify any redistricting plan approved by the Virginia Supreme Court; or (d) initiate a redistricting effort at any time outside the ten-year cycle set by Article II, Section 6 and Article II, Section 6-A.

(2) General Assembly’s Legislative Power. The proposed strategy invokes the General Assembly’s broad legislative power and contends that despite the November 2020 amendment to Virginia Constitution, Article II, Section 6, “[t]he GA retained the power to stop the unfairness in 2026 if present” and “The determination of this unfairness to Virginian (sic) seems inherently the
power of the state legislative branch.” This claim may have political and rhetorical appeal for some people, but it lacks legal support.

The General Assembly has broad legislative authority under the Virginia Constitution, and the Virginia courts are required to defer to the policy decisions made by the General Assembly when it exercises its legislative power. However, the Virginia courts are not required to defer to the General Assembly’s actions if they are expressly or impliedly prohibited by, or
inconsistent with, relevant provisions of the Virginia Constitution. See, e.g., FFW Enterprises v. Fairfax County, 701 S.E.2d 795, 800 (VA Supreme Court 2010)(“The General Assembly may enact any law or take any action ‘unless it is prohibited by the state or federal constitution in express terms or by necessary implication.’”)(emphasis added); Terry v. Mazur, 362 S.E.2d
904, 908 (VA Supreme Court 1987)(acknowledging broad, plenary power of General Assembly, but stating “An Act passed by the General Assembly inconsistent with or repugnant to the Constitution is invalid, and it is our duty to declare such an act unconstitutional.”). The General Assembly has no authority to act in contravention of the Virginia Constitution.

Prior to the November 2020 amendment of Virginia Constitution, Article II, Section 6 and adoption of Article II, Section 6-A, the General Assembly had the authority to establish the electoral districts. That authority was taken away from the General Assembly by the November 2020 amendment and given to the Virginia Redistricting Commission and the Virginia Supreme
Court. It is untenable for the proposed strategy to contend that the General Assembly has “inherent authority” to unilaterally undertake a redistricting effort that is clearly inconsistent with the provisions of Article II, Section 6-A. Any attempt by the General Assembly to claim it has authority to act on electoral redistricting despite the specific provisions of Article II, Section 6-A
would be in violation of Article IV, Section 14 (“Powers of General Assembly; limitations”), which states “The authority of the General Assembly shall extend to all subjects of legislation not herein prohibited or restricted. . . ..”). See also Virginia Supreme Court decisions cited in preceding paragraph.

The proposed strategy recommends the General Assembly hold hearings before making a declaration that the current Congressional Districts are “unfair.” Holding hearings to support a legislative declaration cannot cure the General Assembly’s lack of authority to engage in redistricting contrary to the provisions of Article II, Section 6-A. Compare McKeithen v. City of
Richmond, 893 S.E.2d 369, 375 (VA Supreme Court 2023)(government cannot use ipse dixit redefinition of property to sidestep Virginia Constitution, Article I, Section 11).

Moreover, a declaration by the General Assembly does not have the force of law. See Taylor v. Northam, 862 S.E.2d 458, 469 (VA Supreme Court 2021)(“While public policy may be deduced from legislative enactments, such as a joint resolution, the expression of public policy in a joint resolution will not have the same legal effect as the expression of public policy in an enforceable statute because a joint resolution is not law.”). Passing a bill to establish new Congressional Districts would be an empty political gesture because passage of such a bill would not cure the General Assembly’s lack of authority to unilaterally engage in electoral redistricting.

(3) Claim that Virginia Courts would support the proposed strategy. The proposed strategy contends that the Virginia courts would uphold the General Assembly’s position if it made a legislative declaration that existing electoral districts are “unfair” then used that declaration as a basis to enact legislation to change the existing Congressional Districts. That contention is legally untenable.

As discussed above, the November 2020 amendment to Article II, Section 6, and the adoption of Article II, Section 6-A transferred the redistricting authority from the General Assembly to the Virginia Redistricting Commission (and the Virginia Supreme Court under specified conditions), and specifically limited the General Assembly’s role in the process. The
Virginia Constitution, not the General Assembly, is the supreme and fundamental law of the Commonwealth. The General Assembly does not have any authority (express or implied) to take actions that contravene or violate Virginia Constitution, Article II, Section 6-A. Any declarations made by the General Assembly about the fairness of electoral districts cannot
supersede or nullify Section 6-A.

With respect to the judicial interpretation of provisions of the Virginia Constitution, the VA Supreme Court views such issues de novo as a matter of law, and is not bound to accept or adopt any interpretation of those constitutional provisions asserted by the General Assembly, the Governor, the Attorney General, or any other litigant in a case that is being considered by the Virginia Supreme Court. It is untenable for the proposed strategy to assume that Virginia courts will uphold any actions taken by the General Assembly that are in contravention or violation of the redistricting provisions of the Virginia Constitution.

Furthermore, the proposed strategy acknowledges that the Virginia Supreme Court created the current Congressional Districts pursuant to Article II, Section 6-A. The Virginia Supreme Court did so in a decision issued December 28, 2021. (A copy of that decision can be found on the Virginia Supreme Court’s website.) The proposed strategy implicitly assumes the
General Assembly has the “inherent authority” to simply ignore the legitimacy of the Virginia Supreme Court’s December 28, 2021, redistricting decision by unilaterally declaring the electoral districts established by that decision are “unfair.” No provision of the Virginia Constitution gives the General Assembly the authority to ignore, disregard, modify, or nullify a decision of the Virginia Supreme Court. I seriously doubt any lower Virginia Court would rule that the General Assembly has the authority to issue a declaration or enact a statute that ignores, disregards, modifies, or nullifies the Virginia Supreme Court’s December 28, 2021 redistricting decision.

Why? Because (a) under long-standing, fundamental principles of Virginia jurisprudence no lower Virginia court has any authority to do so, and (b) nothing in Article II, Section 6 or Article II, Section 6-A gives the General Assembly any authority to replace electoral districts established by the Virginia Supreme Court pursuant to authority granted to it by Article II, Section 6-A.

For all the foregoing reasons, the proposed strategy is not consistent with relevant provisions of the Virginia Constitution. To the contrary, the proposed strategy recommends a course of action that would contravene or violate provisions of the Virginia Constitution.

Members of the General Assembly take an oath of office that commits them to “support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia, and [to] … faithfully and impartially discharge all the duties incumbent upon me . . . .” Virginia Constitution, Article II, Section 7. That oath of office is not an empty ceremonial gesture, but a constitutional obligation. Supporting and abiding by the Virginia Constitution is one of the
duties required of General Assembly members. Any effort by members of the General Assembly to (a) ignore or disregard the provisions of Article II, Section 6 and Article II, Section 6-A, and (b) enact legislation to change the Congressional Districts established by the Supreme Court’s December 28, 2021, redistricting decision, would be a violation of their oaths of office and a
brazen assault on the rule of law in Virginia.

If the General Assembly were to adopt the proposed strategy, it would be (1) declaring that it is not bound by the Virginia Constitution, (2) usurping power that it does not possess, and (3) presuming to substitute its notion of electoral district “fairness” to “save” the people of Virginia from the current Congressional districts — which were established lawfully by the
Virginia Supreme Court in December 2021. If the General Assembly goes down that road, who knows what other usurpation of power it will try to inflict on the people of Virginia in the name of “fairness” or any other appealing ideal.