by J. Kennerly Davis

All Virginians, regardless of their political affiliations, should welcome the decision issued this week by Circuit Court Judge Jack Hurley to block and void the Democrats’ brazen attempt to defy the clear requirements of the Virginia Constitution and unlawfully redraw the Commonwealth’s congressional districts to their disproportionate advantage. We all win when the courts uphold the rule of law.

The redrawing of legislative districts always has the potential to unleash partisan overreach and lead to a one-party dominance that saps the vitality of representative government. This danger can be avoided, or at least lessened, if the redistricting process is structured to ensure the bipartisan participation needed to protect the fundamental interest that all citizens have in genuinely competitive elections.

In 2020, Virginians voted overwhelmingly to do just that. By a roughly two-to-one margin, we approved an amendment to the Virginia Constitution (Article II, Sections 6 and 6-A) that established a bipartisan 16-member Virginia Redistricting Commission to update the map of congressional districts in 2021 and every ten years thereafter upon completion of each decennial U.S. census.

The Commission consists of eight citizens and eight state legislators, with four of each category representing one of the two major political parties. Six of the citizen commissioners and six of the legislative commissioners must approve an updated map before it can be sent to the General Assembly. Once there, the Commission’s map must be approved by a simple majority, with no amendments permitted. If this process fails to produce an updated map in a timely fashion, the Supreme Court of Virginia will draw the updated districts.           

The congressional districts mapped out by the process contained in the Virginia Constitution must each be composed of contiguous and compact territory, and all districts must be drawn in full accordance with the requirements of federal and state law, including the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and the federal Voting Rights Act of 1965. The redistricting done pursuant to this process in 2021 has produced a fairly balanced congressional delegation comprised of six Democrats and five Republicans.

In stark contrast, the congressional districts drawn up by the General Assembly following the 2010 census were considered some of the most heavily gerrymandered in the country. The constitutional enactment in 2020 of the bipartisan commission redistricting process was, therefore, widely applauded as a significant improvement for representative government in Virginia. And polls show that the bipartisan commission-based process contained in Article II of our Constitution still commands strong support from two-thirds of Virginians.

Despite the obvious benefits of bipartisan redistricting, and the continuing strong public support for the commission-based process, Democrats are attempting to trash the reforms and leverage their narrow majorities in the General Assembly to amend Article II of our Constitution, retake partisan control of redistricting, and gerrymander a district map designed to produce a congressional delegation of 10 Democrats and only one Republican. The Democrats actions are not only brazen, they are also, as found by Judge Hurley, clearly illegal.

The exacting procedural requirements for amending the Virginia Constitution are set out in its Article XII, Section 1. Any and every amendment must be agreed to by a majority of both chambers of the General Assembly in two separate consecutive annual sessions, with a general election for the House of Delegates conducted after the first legislative approval of the amendment, and before the second legislative approval of the amendment. Once this specified process is completed– approval by the General Assembly, election of a new House of Delegates, confirming approval by a newly constituted General Assembly – then and only then can the proposed amendment be submitted to voters for their consideration in a special election.

The purpose of the two-session and intervening election requirement in Article XII, Section 1, is to ensure deliberate, extended, public consideration of proposed constitutional changes. The procedural requirements are designed to prevent hasty alterations to the Commonwealth’s Constitution based on temporary alignments of political power. The intervening election allows voters to consider the proposed amendment, and those who supported or opposed it, when voting for their representatives in the new session of the General Assembly.     

The Democrats’ hasty partisan redistricting initiative violates both the letter and the purpose of Article XII, Section 1. The Democrat-controlled General Assembly passed their proposed redistricting amendment on October 31, 2025, and again in January. The October passage of the amendment was clearly illegitimate because it occurred not before but during the 2025 General Assembly election, which had begun with early voting on September 19.

This sequence denied approximately one million early voters any opportunity to consider the position taken by candidates on the amendment. And it clearly violated the strict constitutional requirement that there be an intervening election between the General Assembly’s two approvals of a proposed amendment.

Judge Hurley’s decision has not chastened Democrats, nor deterred them from continuing to pursue their unlawful partisan redistricting. They have taken Judge Hurley’s decision to the Virginia Court of Appeals. In the General Assembly, Democrats have passed, by a party-line vote, and sent to the Governor legislation to authorize $5.2 million for an April special election on their redistricting amendment.

All senior public officials in Virginia — including Judge Hurley, higher court judges, members of the General Assembly, and the Governor – take an oath of office solemnly swearing, among other commitments, to uphold the Constitution of Virginia and, to the best of their ability, to perform their official duties fully in accordance with that Constitution. Judge Hurley has forthrightly fulfilled his oath of office, just as the Democrats in the General Assembly have flagrantly violated theirs. Other higher court judges will have an opportunity to show whether they take seriously the Virginia constitution and their oath to uphold it. And so will the Governor, as she decides whether to sign or veto the legislation funding the special April redistricting election.

Whatever individual officials have done or now decide to do, every Virginian also has the same decision to make; the same fundamental questions to answer: Do I take the Constitution seriously? If I do, will I demonstrate my commitment to the constitutional rule of law by supporting those officials who fulfill their oath of office, and holding politically accountable those who betray their oath of office?

The survival of republican self-government depends on the continuing commitment of every citizen. Ben Franklin’s statement in 1787 that we have a republic, if we can keep it, isn’t just a notable quote from a Founder. It is our job description as citizens. Everyone of us.

J. Kennerly Davis, Jr. served as a Deputy Attorney General for the Commonwealth.