by Dick Hall-Sizemore

A Tazewell circuit court judge has ruled that the attempt by the General Assembly Democrats to amend the state constitution to allow for a redistricting of Congressional districts this year is invalid, both on unconstitutional and statutory grounds.

He based his ruling on three issues:

Legislative rules of procedure—The original resolution establishing the 2024 Special Session limited its action to budgetary measures. Therefore, it was not authorized to enact a proposed constitutional amendment. This basis is a little shaky. The judicial branch has traditionally been reluctant to overturn legislation because the internal rules of the legislature were not followed. The judiciary usually gives deference to the legislature to use whatever procedures it wants as long as they do not violate law or the constitution

Election day—The Virginia Constitution requires that an amendment to the constitution must be approved by two sessions of the General Assembly with an intervening election for the House of Delegates. The 2024 Special Session approved the redistricting amendment on October 31, 2025, several days before Election Day on November 4. The Democrats claim that meets the constitutional requirement of an intervening election. The judge disagreed. He ruled that the election actually started on September 19, when early voting began. 

“For this Court to find that the election was only on November 4, 2025, those one million voters [who voted early] would be completely disenfranchised,” he stated. That ruling is a legitimate one. The issue is whether “an election” in constitutional terms means Election Day or the entire process of election, including early votes. After all, when the current constitution was adopted, there were provisions for absentee voting, which could have been done before the actual Election Day. According to A.E. Dick Howard, the recognized expert on the Virginia Constitution, the provision calling for an intervening election has been in the state constitution since 1870. Early voting certainly was not anticipated at that time.

Early notice—State law requires the distribution of any proposed constitutional amendments to all localities and “posted at the front door of the courthouse…  not later than three months prior to the next ensuing general election of members of the House of Delegates.” This did not happen.

Democrats contend that this requirement is an anachronism. They point out that it was deleted from the latest version of the state constitution and repealing this statute has just been overlooked. They have a point. The Virginia Code used to be littered with requirements to post notices on the courthouse door. This was in the days when citizens did not have the ready access to news that they have today and when the courthouse functioned as the primary source of business and news in a locality. Today, the vast majority of Virginia citizens probably could not tell you where the courthouse is located. Be that as it may, the posting requirement is still law and, if anyone should be required to comply with provisions of the law, it is the General Assembly.

Democrats have attempted to preempt the court’s ruling. In the legislation that would authorize the redistricting referendum and provide funding for it, they have included a provision repealing the posting requirement, retroactive to 1971, when the current constitution was ratified. Also included is a provision, effective September 1, 2025, requiring that the venue for any suit concerning a constitutional amendment and the process for adopting one be the Circuit Court for the City of Richmond and that “any pending suit affected by this legislation shall be immediately transferred to the Circuit Court of the City of Richmond.” 

Both of these provisions are outrageous. To enact legislation retroactively repealing legislation and changing the venue for specific actions whose application has adversely affected you flies in the face of the principles of the rule of law.

In his opinion, the Tazewell judge addressed this legislation and ruled it was “null and void.” The legislation has a provision that would make it effective upon the signature of the governor. The judge ruled that the bill, consequently, was emergency legislation and had not obtained the constitutionally required four-fifths vote.

The Democrats contend that the legislation is exempt from the four-fifths requirement because it is an amendment to the appropriation act. The state constitution exempts a “general appropriation act” from its effective date requirements. State law provides that “a general appropriation act shall take effect from its passage, unless another effective date is specified in the act.” The legislation in question provides that it would become effective on its passage under the provisions of Sec. 1-214. In other words, the Democrats are treating this legislation as if it were a “mini-caboose bill.”

The bill increases the salary of the director of the Division of Legislative Services, designates some existing funding to several agencies or commissions, and appropriates funds to the Department of Elections for conducting the referendum. It goes on to set out the provisions of the constitutional amendment, repeals the statue requiring the posting of notice of the proposed amendment, changes the venue of any suit dealing with amending the constitution, and makes technical changes in the numbering of paragraphs in the current Appropriation Act. To call this “a general appropriation act” is stretching the term.

At least one media report implies that the Tazewell judge issued an injunction prohibiting any further action by the General Assembly on the redistricting amendment. If this is the case, the General Assembly, under the Democratic majority, is violating that injunction. Speaker of the House Don Scott declared that the legislation “will go to the governor’s desk on Friday.”

Democrats have vowed to appeal the decision to the Virgina Supreme Court. That is certainly their right. However, in their desperate haste to enact the redistricting amendment, they are proceeding to enact a measure that a judge has said is constitutionally invalid, using a bill that a judge has ruled “null and void;” resorted to provisions that fly in the face of long-held principles of good government; and may be defying a court injunction.

What Governor Spanberger does with this legislation when it reaches her desk will be her first test.

Note: For this article, I relied on reports from Cardinal News and the Richmond Times Dispatch.