RICHMOND, Va. — In a case that carries high stakes for the balance of power in Washington, Virginia Supreme Court justices began questioning Monday whether state Democrats violated the Virginia Constitution when they sent a redistricting referendum to voters last Tuesday.
The special election led to a narrow victory for Democrats, but the heart of the legal issue focuses on what is legally considered an election.
CBS 6 Political Analyst Dr. Bob Holsworth said a constitutional amendment requires approval by two sessions of the General Assembly, separated by an election in the House of Delegates.
"I think the basic constitutional question that was really discussed today had to with, when does an election start?" Holsworth said.
According to Holsworth, the core dispute stems from the timeline of when the amendment was passed.
"And what happened in 2025, the Democrats passed an amendment while early voting was taking place for the legislative elections. The Democrats say the constitution is clear, the constitution says the election takes place for the Tuesday after the first Monday in November. The Republicans by and large say 'Oh no, the election was taking place, we had early voting going on,'" Holsworth said.
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Republicans argue that over a million people voted before knowing what was happening with the amendment.
"To construe the word 'election', we begin with ordinary meaning. Webster's, Oxford, Black's Law, they all define 'election' to mean the entire process by which votes are cast to determine a winning candidate," said Thomas McCarthy, an attorney for Republican lawmakers.
Matthew Seligman, an attorney for Democratic lawmakers, argued that many states identify Election Day as a single day, and anyone who votes before that takes the risk of information coming out after the fact that may sway their decision.
"The General Assembly and the people validly ratified the amendment by strictly complying with the procedure set forth in the constitution," Seligman said.
Supreme Court of Virginia Justice Wesley G. Russell, Jr. pressed Seligman on that interpretation during the hearing.
"Your position requires us to interpret election in such a manner that, literally, every single vote that is cast for whatever the office is -- is cast before the election even begins," Russell said.
"Yes, your honor, and that's consistent both with the way the federal government has consistently interpreted this the federal courts and sister states. A contrary interpretation would make Virginia a sole outlier," Seligman said.
Justices also pressed attorneys on two other arguments. They questioned whether lawmakers were allowed to take up the amendment in a special session that was initially called in 2024 for the budget, and whether courthouses needed to post notices 90 days before an election begins, which did not happen in this case.
Following the 60-minute hearing, both sides appeared confident the court would rule in their favor.
It is unclear how long it will take for the justices to issue an opinion. There are still two more lawsuits challenging the referendum, and justices have agreed to take up at least one of those cases.
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