Only three of the seven justices on the bench questioned attorneys for the state and amendment proponents, making it difficult to predict where the court will ultimately lean. Several of the questions centered on whether it is plausible to treat Election Day as a single, fixed event, given that millions of voters now cast ballots weeks in advance.

Justice Wesley Russell Jr. repeatedly challenged the state’s position that early voting occurs “before” the election, noting that such a reading would mean “every single vote that is cast” could theoretically occur before the election even begins. The line of questioning underscored some members of the court’s apparent discomfort with the manner in which the amendment was placed on the ballot, a move challengers argue violated the Virginia Constitution.

Russell also asked the defendants at the outset whether the recent “yes” vote to the redistricting question was relevant to the legal issues at hand, to which the counsel said the outcome would have no bearing on the court’s decision.

Attorneys defending the amendment argued that the state constitution defines elections as occurring on a single day in November, with early voting merely constituting participation ahead of that date. They warned that adopting the challengers’ broader definition, which would treat the election as an ongoing process, could disrupt long-standing constitutional interpretation and make Virginia an outlier among states.

But the justices who did speak questioned the real-world implications of that view, asking whether voters who cast ballots early are meaningfully excluded from participating in the “election” itself under the state’s theory.

The dispute over timing is central because Virginia’s Constitution requires a proposed amendment to pass the legislature, then be considered after the “next general election” before final approval and submission to voters. Challengers argue that because early voting was already underway last year when lawmakers acted, the required intervening election had effectively begun, rendering the process invalid. Virginia holds its elections during off-years.

Beyond the timing trouble, the court examined whether the legislature improperly used a special session to advance the amendment.

Attorneys challenging the measure argued that the session, initially convened for budget-related matters, was unlawfully expanded to include redistricting. They contended that doing so bypassed constitutional safeguards, including requirements designed to limit the scope of special sessions and ensure broader legislative consensus.

“This is unprecedented,” plaintiff attorney Thomas McCarthy told the court, arguing that the legislature “departed radically” from established constitutional procedures and undermined voter confidence in the process.

At least two justices, however, showed some skepticism toward framing the dispute in political terms, emphasizing that the legal question at hand is not whether lawmakers acted improperly in a general sense, but whether they violated specific constitutional limits.

The court also examined a separate issue involving statutory notice requirements, including whether the state failed to properly publish the amendment ahead of the election. Some justices appeared wary of adopting a rule that could allow minor administrative failures, such as a clerk not posting notice, to invalidate an otherwise constitutional statewide vote.

At the same time, challengers argued the defects were not technical or isolated, pointing to evidence that voters had already begun casting ballots before the amendment was even proposed, leaving them without an opportunity to consider its implications.

The case arrives amid a broader national redistricting fight, as both parties maneuver to redraw congressional maps ahead of a closely contested election cycle. Virginia is one of several states where control of the House could hinge on newly configured districts.

Currently, Virginia’s congressional delegation is narrowly divided, with six Democrats and five Republicans. The new map approved by voters could significantly improve Democrats’ chances of expanding that margin.

The litigation over the ballot measure also spans three separate cases involving four constitutional claims and multiple statutory challenges, underscoring the unusually complex dispute over the amendment’s validity.

Ken Cuccinelli, the state’s former attorney general who offered an analysis after the oral arguments, said the ballot language was not addressed during this oral argument but that it had already been ruled “in violation of Virginia’s plain English rule,” describing it as “extreme misleading” in nature, an issue now headed to the Supreme Court of Virginia on appeal from the Tazewell County Circuit Court. The referendum asked voters if they wanted to “restore fairness” to the state’s congressional map but did not explain that the redistricting was aggressively partisan.

Cuccinelli also pointed to an example, raised in court filings, of a Democratic voter who supported the state’s bipartisan redistricting system but cast her ballot early in 2025 before her own delegate, Democrat Rodney Willett, introduced the amendment. According to sworn court filings, she said she would have voted differently had she known it was coming, a claim included in a verified complaint and not contested by the state, which Cuccinelli argued underscores the fairness concerns surrounding the timing of the measure.

Last week, a judge in the Tazewell County Circuit Court moved to block certification of the referendum results and declined to pause that order pending appeal, escalating the stakes ahead of the state Supreme Court review.

A lower court judge previously ruled the amendment process unconstitutional and blocked certification of the vote, but the state Supreme Court paused that decision to allow the referendum to proceed while it considered the case.

VIRGINIA REDISTRICTING REFERENDUM UNCONSTITUTIONAL, CIRCUIT COURT RULES

A ruling from the court is expected to determine not only the fate of Virginia’s new districts but also to clarify how strictly the state’s constitutional amendment procedures must be followed in the era of early voting.

Cuccinelli said that predictions are hard to make, but if he had to make one, he thinks that the state Supreme Court could rule by May.