Last week, Democrats celebrated their narrow win in Virginia's redistricting referendum. This week, they find less and less to celebrate.
Yesterday, the state supreme court heard oral arguments in a lawsuit brought by Republicans over several irregularities in the process. While it's usually a fool's errand to predict outcomes from the questions asked in this Socratic process, the questions appeared to center on points made by challengers, especially in how the referendum got added to the ballot after early voting had already started. State law at the time required publication 90 days in advance of the election too, and the judges questioned why the state ignored that and then retroactively repealed the requirement. It certainly looked like the top court had serious reservations about the referendum and the process. Observers warned about reading too much into that, perhaps wisely since those issues had been raised in challenges before the election.
However, a separate and parallel challenge had resulted in an injunction preventing the state from certifying the election result. AG Jay Jones petitioned SCOVA to lift the injunction so that Virginia could prepare for the upcoming election with the new map. The court issued an order earlier today saying absolutely not, and state legislator Wren Williams celebrated (via RedState):
🚨 BREAKING: The Supreme Court of Virginia has denied the Attorney General’s Motion for Emergency Stay in RNC v. Koski - the one where he didn’t quote the ballot language.
— Wren Williams (@WrenWilliamsVA) April 28, 2026
One sentence. No dissent. No partial relief.
“Upon consideration whereof, the Court denies the motion.”… pic.twitter.com/lr2gPAosZO
Jay Jones’ outside counsel from California asked the Court to allow the election process to proceed pending the rulings on the merits of the gerrymandering cases.
The Court said “no.” This stops the election from being certified for now.
The same Supreme Court that allowed the referendum to go forward in March, so voters could be heard, has now declined to override a final judgment finding the constitutional amendment process defective. Strong signal that process matters in Virginia.
The Attorney General asked the Court of Virginia to set aside a final order that exposed a ballot question he would not quote, an Article XII timeline he had to redefine, and a 1912 case that did not say what he needed it to say.
The Supreme Court said “no.”
Is this a harbinger of the court's ruling on the merits? Maybe. Generally speaking, TROs only really indicate a balance-of-harms consideration while a court decides on the merits of a case. The district court that issued the injunction has repeatedly ruled the referendum unconstitutional on several grounds, both before and now after the election, which is enough to warrant an injunction. The appeal by Jones would argue that the court is wrong on the likelihood of success for the challengers and that the state will suffer irreparable harm from the delay in implementing the results of the referendum. Given the timing and proximity of the midterm election process, Jones would have a good argument on irreparable harm in delaying the political process in congressional midterms while the map is in serious legal question.
Therefore, it seems pretty interesting, at least, that the state supreme court refused to lift the injunction, forcing Virginia to stick with the previous map for now. This is not a case of waiting for a lower court to rule, either; SCOVA has this case on the merits right now and could at least assess whether the state should proceed with the map authorized by the referendum. A per curiam refusal to allow that looks like a pretty good signal where the court may be headed.
Former VA AG Ken Cuccinelli II (that's "the second," for Ilham Omar's sake) calls it "a good sign" but not necessarily conclusive:
Major Virginia Redistricting Case update:
— Ken Cuccinelli II (@KenCuccinelli) April 28, 2026
The Virginia Supreme Court (#SCOVA) has DENIED the emergency request to stay the injunction of certification of last week's Gerrymandering referendum!
In the 'tea leaves' category, this is as positive a 'tea leaf' as one might imagine!… pic.twitter.com/fw0wedtbEu
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.
As tea leaves go, yes, this is about as good as it gets. That doesn't make a tea leaf any less of a tea leaf, however. This development certainly looks more positive for the challengers than if the court had allowed Jones and Abigail Spanberger to certify the results while the court mulled over the issue. Had the decision gone the other way, Democrats would be celebrating it, although nothing about certifying the result would necessarily bind the court to the outcome either. Courts toss out referenda that violate constitutions and statutes regardless of whether the outcomes are certified. And just to play devil's advocate, the court may anticipate a fairly quick resolution in either direction and just doesn't want to worry about the lower-court injunction that way well get mooted soon enough anyway.
Still, Cuccinelli's correct that it's far better to see this order than its opposite. Otherwise, we might be in the same position as Lloyd Christmas.
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