Bacon's Rebellion

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by Dick Hall-Sizemore

Justice Arthur Kelsey of the Virginia Supreme Court was the author of the recent decision in which the Court struck down the recently approved constitutional amendment regarding redistricting. Justice Kelsey’s current 12-term on the Court will expire next January. To continue on the Court, he would have to be re-elected by the General Assembly to a new term.

Del. Dan Helmer (D-Fairfax) was quoted in the Virginia Political Newsletter as saying, “We will make sure that Justice Kelsy does not serve anymore come this January.”

That is an outrageous statement. It smacks of Donald Trump’s campaign of retribution against legislators and other officials who disagree with him.

If the decision and opinion of the Virginia Supreme Court were blatantly partisan, that would be grounds for not electing Kelsey to another term. But the decision was not partisan. It rested on perfectly sound reasoning: an “election,” in the modern sense, is comprised of more than one day. It is the means whereby citizens register their choices for candidates or questions on the ballot. In Virginia, the process in which citizens can register their choices, i.e. an election, runs from 45 days prior to Election Day, the last day on which they are able to cast a ballot, to noon on the third day after Election Day, the time period in which registrars may receive and count mailed-in ballots postmarked on or before Election Day. 

Democrats want to have their cake and eat it, too. On the one hand, they want to argue that the language in the Virginia Constitution referring to the “next general election of members of the House of Delegates,” relating to the adoption of amendments to the constitution, refers to Election Day. On the other hand, they want to argue that casting of ballots in an election does not have to occur on Election Day to be valid. They can’t have it both ways.

It was a divided decision. Three Justices of the Court disagreed, arguing that the “next general election of members of the House of Delegates” means Election Day. That is the nature of the judicial process; reasonable people can disagree. It is a matter of which argument is the most persuasive to most of the members of the Court.

Democrats could have avoided this situation. They could have adopted the redistricting amendment the first time last August or September, before early voting began, instead of waiting until the last of October, a few days before Election Day.

Now, they are claiming that the Court has overturned the “will of the people.” However, it was the Democrats who argued to the Court in proceedings before the referendum process got underway that precedent required it to wait until the referendum was over before it issued a ruling.  See https://www.vacourts.gov/static/opinions/opnscvwp/1260127.pdf. In the end, the Court did not rule on the substance of the proposed amendment, but on the process by which the amendment was put before the people. It found that the General Assembly did not follow the process laid out in the constitution for amending it and, thus, the referendum itself, not the changes that would have been effected by the referendum, was invalid. Process is important in a democracy.

The Democrats in the General Assembly rolled the dice and lost. Now, they are calling for vengeance. It is unbecoming.