Cuccinelli says Dems undercut own redistricting defense as Virginia justices press ‘Yes’ camp
The Supreme Court of Virginia heard oral arguments in a challenge to Tuesday's redistricting amendment, as a former state prosecutor said Democrats' eagerness to ram through early voting may help derail their redistricting effort.
The state's high court appeared to press the attorney for the Democrat-led "Yes" camp more than the lawyer for Republican plaintiffs, as Chief Justice Cleo Powell brought the court to order Monday.
While election certification is on hold after Tazewell County Judge Jack Hurley Jr. issued a legal challenge following projections that "Yes" would win by single digits, a separate argument over the validity of the October-November process that led to the referendum was before the high court in Richmond.
In a post-mortem analysis of Monday's arguments, former Virginia Attorney General Ken Cuccinelli said that only a few justices asked questions of the litigants and their questions for the "Yes" camp were particularly pointed.
Attorneys Richard Hawkins and Matthew Seligman, and Solicitor General Tillman Breckenridge represented Democrats seeking to uphold Tuesday’s election result, while attorney Thomas McCarthy argued for Senate Minority Leader Ryan McDougle, R-Hanover, and other officials challenging it.
Justice Wesley Russell's first question to Seligman and Hawkins was whether the vote Tuesday in which the "Yes" camp won even mattered in a legal setting.
"He got counsel for the defendants to concede 'no the vote outcome does not matter' — they didn't talk about the margin [or the] 3:1 spending," Cuccinelli said later Monday.
Cuccinelli said Democrats, led by Attorney General Jay Jones, have used that victory since as their reason for the redistricting's legitimacy.
"The current attorney general of Virginia... has really in his public statements; the only defense I've heard him offer is the 'will of the people'... and his own lawyer in court today says that was irrelevant," Cuccinelli said. "[Hawkins] completely undercut the public stance of the current attorney general."
Cuccinelli added that the defendants were also "shockingly blasé" when they suggested early voters vote at their own risk of an "October Surprise" like redistricting, when challenged on the merits of the case given the 45-day early voting window established the last time Democrats had full control in Richmond.
The former AG said it may be that effort that gets "hoisted on their own 45-day patard" and that, with Republicans being outspent 3:1, the only thing Democrats' money would have been good for is "making voters mad" and therefore giving the GOP an accidental win.
In court, Seligman addressed the justices, saying Virginians spoke out with their vote in a "clear and comprehensive process" outlined in the Virginia Constitution, and that the General Assembly, led by Speaker Don Scott Jr., D-Portsmouth, and Senate President L. Louise Lucas, D-Portsmouth, passed the measure through the proper means during an October special session.
Republicans have argued that the intent of the special session — called months earlier by then-Gov. Glenn Youngkin and adjourned indefinitely — was improperly used to pass the amendment. They also argue the November 2025 election did not represent an "intervening election" as required by law because early voting had already begun.
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Seligman said the assembly rightly referred the proposed amendment to legislators a second time in January as required and it went to voters on Tuesday.
"That is all that Article 12 requires. As a result, the proposed constitutional amendment has been ratified and is now part of the Virginia Constitution. The circuit court attempted to interfere with that democratic process by halting it," he said, referring to Hurley’s prior objection. "This court properly put a stop to that."
Responding to Seligman, a justice said he didn’t understand the explanation "as a legal argument" given that Democrats had asked the court — according to the jurist — to hold off on deciding on procedural irregularities until after the actual election in conforming with a 100-year-old SCOVA decision in that regard.
"The fact that there’s a ‘yes’ vote doesn’t tell us anything about the merits" of McDougle’s camp’s argument that the legislative piece of the referendum’s creation didn’t conform with law.
Another justice offered an incredulous response during a discussion about the "constitutional silence" surrounding when a special session adjourned "indefinitely/sine die" is actually officially over — including if a regular session convenes potentially in between.
"Would a special session convened in 1929, if they forgot to adjourn sine die, still be in-session?" the justice asked.
Seligman said it would not, while later adding that the practice of such has been "mixed" in Richmond and Washington.
By contrast, the justices’ questions for McCarthy appeared more open-ended, as he began his remarks by saying the redistricting amendment violates the state Constitution’s limitations on special sessions in multiple ways, including that then-Gov. Youngkin called it for budget — not election-planning — purposes.
In turn, the justices asked questions seeking McCarthy to expound upon "historical record" of General Assembly special sessions, and whether the two-thirds majority policy or called-by-the-governor argument are more prominent.
The court is expected to operate on an expedited schedule in this matter, as the 2026 primary election is about two months away and districts must be known by then.