The lawyer defending the Democrats’ gerrymandering effort in Virginia admitted to the state Supreme Court on Monday that the vote count has no bearing on the constitutional problems with the referendum. The admission undercuts one of the primary arguments from Attorney General Jay Jones, D-Va., whose office is defending the gerrymander, that the court cannot overturn the results of an election.
During oral argument before the Virginia Supreme Court, attorney Matthew A. Seligman, arguing on behalf of the Democrats controlling Virginia and in favor of gerrymandering, was forced to admit that the final vote count passing gerrymandering does not matter, after questioning from Justice Wesley Russell. Seligman, who is a member of a large group of attorneys Jones’ office hired as outside legal counsel, attempted to make the argument that the plaintiffs opposed to the gerrymander are now attempting to “overturn the results of that democratic process [the vote].”
“I don’t understand that as a legal argument,” Russell interjected, “given that you asked us to invoke our ironically-enough-named Scott decision from over 100 years ago that specifically says you don’t deal with any potential procedural irregularities before the people have voted. So, saying that the people have voted yes after having said you don’t even look as to whether there’s a procedural irregularity … doesn’t add anything to the equation, does it?”
Seligman responded “no,” adding that the court should not accept the plaintiffs’ arguments on the merits. Russell once again interjected, “But the fact that there’s a ‘yes’ vote doesn’t tell us anything about those merits.”
“Uh, no, it does not,” Seligman said.
Seligman also argued that the Tazewell Circuit Court “attempted to interfere with that democratic process by halting it” and asserted that the Supreme Court “properly put a stop to that.” (The Tazewell court has consistently ruled against the gerrymandering scheme given significant constitutional and procedural concerns, and it immediately blocked certification of the final vote after April 21.) Seligman was referring to the Supreme Court delaying constitutional challenges to the ballot initiative until after a vote had taken place.
In a briefing Monday morning about the oral arguments, former Attorney General Ken Cuccinelli, R-Va., noted this delay is in line with longstanding precedent that considers the vote the final step in the legislative procedure required to initiate a challenge. He also likened the vote to the signature of a governor or president on legislation. The signature is the thing that puts the law into effect, and it is not challengeable until that process is completed.
During the call, Cuccinelli said, “The attorney general’s own lawyer completely undercut the public stance of the current attorney general,” adding, “the only defense that I’ve heard him offer is, ‘Well, the will of the people — his 51.5 to 48.5 vote — will of the people.'”
Outside the legal and constitutional questions at hand, Cuccinelli suspected “the Democrats were probably counting on a much bigger margin and hoping that that would weigh heavily emotionally on the justices’ minds as they considered these questions. But it was a very close vote, particularly when the ‘yes’ side outspent the ‘no’ side by three- or four-to-one. So even in persuasive effect, I don’t think that vote is going to matter.”
The case the Virginia Supreme Court heard Monday has been fast-tracked, given the nature of the case and that it is an election year, Cuccinelli said. The high court knows the problem with the maps needs to be dealt with well before the midterms in November, and Cuccinelli said it was “the fastest” the state high court had moved on anything in his experience.
Three cases are percolating that challenge gerrymandering in Virginia, Cuccinelli noted. Two relate to the referendum, and one deals with the constitutionality of the physical maps of the gerrymandered districts. Whether the procedure and methods Democrats used to pass the measure are constitutional is the central question.
The court Monday heard challenges to the referendum as passed in 2025. Virginia’s constitution requires any referendum to be passed by two different General Assemblies before being presented to voters, mandating an intervening election of the legislature to give the voting public a chance to kick out legislators if citizens do not like a referendum that went through the initial passage phase.
The intervening election procedure is another major focus of the case heard Monday. While Democrats passed the referendum on Oct. 31, 2025, and there was an election just four days later on Nov. 4, the challenge notes that Virginia’s 45-day early voting season had already been well underway by Nov. 4, and that voters had no idea they would be voting for or against a ballot referendum until more than 1.3 million votes had already been cast.
Democrats rigged even that process, however, by calling a special session in October 2025, completing the first passage of the referendum on Halloween. One primary concern for the plaintiffs is that a special session is inherently “special” for a reason, Cuccinelli said. The parameters of a special session are limited to how it was called, whereas a regular session can deal with anything. In 2025, the special session was limited to the budget and some minor memorial resolutions — not voting or a referendum.
Changing the parameters of a special session requires a two-thirds vote of the General Assembly, which never occurred, Cuccinelli noted. The Democrats passed the gerrymandering referendum anyway. That undermines the purpose of the intervening election procedure, but the pro-gerrymandering side maintains that the “election” means Election Day itself, not the first days the polls are open.
“What is your position — your client’s position — regarding a constitutional amendment that is adopted at 6 p.m. on Election Day with an hour left at the polls? Is that the next general, is that still the next general election?” one of the justices asked of Virginia Solicitor General Tillman Breckenridge.
Breckenridge said the Virginia government’s position is that the first passage of the amendment must come before Election Day, not on it, which still leaves open the possibility that it could come the day just before Election Day.
“The lawyer for the commonwealth trying to keep the referendum for the Democrats, in addressing the question of the fact that over a million voters had already voted in 2025 when first passage of the proposed amendment occurred, he said, ‘Look, voters who vote early vote at their own risk.’ It was shockingly blasé — that they risk missing out on some October surprise,” Cuccinelli said.
Looking at the landscape of the lawsuits percolating, and “reading the tea leaves,” Cuccinelli said that the court would not likely get to any lawsuit regarding maps unless they decide in favor of the Democrats on the constitutional, procedural, and statutory issues first. If they decide against, the maps would be moot as a result.
He also said that the issues before the court in the first lawsuit, dealing with the 2025 procedural issues, is probably the strongest one. If the Supreme Court decides to “incredibly fast” on the appeal of the Tazewell court decision blocking certification, as opposed to waiting on it for a bit, it could indicate that the court does not intend to decide the case based on the issues presented in the first lawsuit.
Since the issues involved are state rather than federal, Cuccinelli noted, the Supreme Court of Virginia “is going to decide this, not the Supreme Court of the United States.”
