RICHMOND, Va. — Virginia Attorney General Jay Jones has asked the U.S. Supreme Court (SCOTUS) to pause a state supreme court ruling that struck down April's redistricting referendum, putting the fate of Virginia's congressional maps for this year's midterms in the hands of the nation's highest court.
In a 4-3 decision Friday, the Supreme Court of Virginia (SCV) ruled that the referendum was unconstitutional, finding there was no required "intervening election" because early voting was already underway when lawmakers began the process.
Virginia Politics
Virginia Supreme Court strikes down redistricting referendum
Jones argues the ruling is "deeply mistaken on two critical issues of federal law."
Both of Jones' arguments stem from U.S. Supreme Court cases involving Republican lawmakers in other states, according to Virginia Commonwealth University Political Science Professor Dr. John Aughenbaugh.
The first centers on the definition of Election Day. Democrats have argued the Election Day is only the first Tuesday after the first Monday of November.
"It predicated its interpretation of the Virginia Constitution on a grave misreading of federal law, which expressly fixes a single day for the 'election' of Representatives and Delegates to Congress," the state wrote in its filing.
Aughenbaugh says what constitutes Election Day is part of a current SCOTUS case involving how many days after Election Day that mail-in ballots can be accepted in Mississippi.
"The Republican Party Mississippi has argued that all votes that are cast in an election must be received by Election Day that it that is the standard definition of election," Aughenbaugh said. "So Attorney General Jones is arguing the Virginia Supreme Court has adopted a definition of election that could possibly change because of this case."
Jones' second argument is linked to a 2023 U.S. Supreme Court ruling on a North Carolina case. That ruling said that while state courts can review actions taken by state lawmakers regarding federal election oversight, they do not have free rein to go beyond "the ordinary bounds of judicial review" — which is what Jones argues the SCV justices have done.
State Sen. Ryan McDougle (R-Hanover), who was among the Republicans who brought the initial lawsuit overturning the referendum, pushed back on Jones' arguments.
"I think the basic argument is, this is not a federal constitutional issue. This is a state constitutional issue," McDougle said.
McDougle said Republicans will ask the court not to get involved, arguing it has no jurisdiction.
"This is about state constitution and whether we followed the constitution in order to change the constitution," McDougle said. "And I think our Supreme Court clearly ruled you cannot violate the constitution in order to change the constitution."
The legal fight is unfolding against a fast-approaching deadline. Virginia's August primaries for the midterms have early voting starting June 19. In a separate legal case, the commissioner of Virginia's elections said May 12 is the "point of no return" — the date after which changing which map is used could cause disruptions leading to errors in the electoral process.
Aughenbaugh said the justices will be aware of the time pressure and expects them to move quickly. He believes the court will likely decline to take up the case or issue the pause.
"Historically, the US Supreme Court has said the ex. Courts on state law and state constitutional matters are state courts," Aughenbaugh said.
The U.S. Supreme Court has set a 5 p.m. Thursday deadline for Republicans to respond to Jones' filing. Aughenbaugh expects a decision between Friday and Monday.
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