From the EPEC Team Newsletter:
Virginia’s Board of Elections is enjoined from certifying the April 21 Special Election votes by the Friday deadline — per Tuesday’s order by the Supreme Court of VA.
Will the whole thing be thrown out as a lower court has already ruled?
That’s the speculation among legal and even political observers after SCOVA’s one-sentence order Tuesday denying the Attorney General’s motion to move ahead with new congressional maps while the high court reviews multiple legal challenges.
SCOVA’s brief order would mean that Tazewell Circuit Court Judge Jack Hurley’s April 22nd ruling, which halted certification of the election and declared it void, stays while the state high court reviews constitutional challenges from 2025 and 2026.
Former House Delegate and attorney Tim Anderson wrote:
“On a scale of 1-10 (1 being very bad and 10 being very good) – I would rate this at a 187. The Democrats cannot draw maps until the vote has been certified. By allowing the results to be blocked – the Dems are dead in the water until the court rules otherwise. Certification was supposed to happen this Friday.”
Former VA Attorney General Ken Cuccinelli, who also served in the Virginia state Senate, let slip some optimism, too.
“In the ‘tea leaves’ category, this is as positive a ‘tea leaf’ as one might imagine!
“If #SCOVA thought they would let the referendum stand, then logically they would have lifted the injunction on counting & certifying the votes. Caveat: this is still just tea leaves, but it’s a good sign.”
Cuccinelli said he was a little bit surprised that, during oral arguments before the Supreme Court of VA Monday on the constitutional challenges, most of the questions were from two conservative justices on the seven-seat panel, Stephen R. McCullough and Wesley G. Russell Jr.
It may be that even liberal justices are probably “concerned at the rather brazen nature of the General Assembly’s behavior here” in how they passed the referendum.
One of the justices observed that constitutional amendments can last generations and are not easily reversed in subsequent elections.
You can say a lot of things, Cuccinelli added, but you cannot say the General Assembly “strictly adhered” to Article XII, Sec. 1 requirements in passing the constitutional amendment referendum.
The Special Election vote would allow a 6-5 (D-R) congressional map to be re-drawn to a 10-1 (D-R) gerrymandered map ahead of midterm elections.
Justice Russell asked the Solicitor General for Virginia: does the “yes” vote on the referendum question matter to the legal issues before the court? The answer: no.
Appeals of the April 22nd ruling by Judge Hurley are still reportedly pending after Tuesday’s stay. But those could be moot — if the Supreme Court of Virginia agrees with the arguments already put forth during the April 27 hearing.
By the time the Democrat-majority General Assembly voted on “first passage” of the referendum in October of 2025 during early voting, more than one million voters had already cast a ballot. The 90-day notification rule, after the so-called “second passage” constitutional requirement, ran weeks short of the start of early voting on March 6, 2026. That, too, came up for review during oral arguments Monday.
Thomas McCarthy, one of the attorneys for the Republican challengers, including state Sen. Ryan McDougle, said passing a constitutional referendum using a Special Session that began in 2024, in the middle of 2025 election early voting, without sufficient 90-day notice, is not how the process is supposed to work.
“It is the people, the people of the Commonwealth – the voters — who possess the power to amend or modify the constitution,” he told the justices. “And denying them the knowledge that this proposed amendment was coming through, should undermine the whole process.”
Never in the history of the Commonwealth has a General Assembly passed a constitutional amendment referendum this way, he noted.
The audio of the April 27 hearing before the Supreme Court of VA is here:
(The news comes as the U.S. Supreme Court ruled 6-3 on April 29 to narrow Section 2 of the Voting Rights Act, which ends racial gerrymandering in states. It may also impact the current 6-5 [D-R] congressional maps in Virginia.)
The pause to the certification of the April 21 Special Election arrives amid a swirl of legal challenges in this rushed election. It has been mired in confusion over the wording of the ballot question, even confusion over the results that EPEC Team has been documenting. More on that in our next report.