One of the most common questions I’m ever asked is, “What is the Virginia GOP going to do about (insert whatever the Virginia Democrats did that needs responding to here)?”
The most recent example is last week’s hastily-called special session of the Virginia General Assembly to begin the process of repealing a constitutional amendment so the currently Democrat-led Legislature—rather than a bipartisan commission—can redraw Virginia’s congressional districts for the upcoming 2026 midterm elections.
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The Democrats are claiming they have authority to reopen an “existing” special session because Gov. Glenn Youngkin called for one in 2024 to address the budget, and since he and the General Assembly couldn’t reach a deal, that session never really ended.
Democrat House of Delegates Speaker Don Scott’s premise is that the Youngkin special session simply has been hibernating.
The Democrats are proposing to overturn the Bipartisan Redistricting Constitutional Amendment, an amendment that had bipartisan support in the General Assembly and was voted in by Virginians 65%-to-35% in 2020.
If successful in repealing the amendment and turning redistricting power back over to the Legislature, they plan to redraw congressional districts to add four more Virginia Democrats to Congress to counteract the recent redistricting that Texas was court-ordered to undertake that gave the Lone Star state more Republican seats in the U.S. House.
The bill to call the session, patroned by Democrat state Del. Charniele Herring, even states that the Democrats wish to write a law that would allow them to redraw districts any time another state does.
So, what is the Virginia GOP going to do about it?
On Friday, three county clerks of the court filed a lawsuit in the Circuit Court for the City of Richmond. Spotsylvania, Lunenburg, and Henrico counties are suing Scott and the head of the Virginia Senate, Republican Lt. Gov. Winsome Earle-Sears (who does not want to call a special session), alleging that the General Assembly is not still in special session.
“The ongoing actions of the General Assembly are ultra vires, void and of no effect, inasmuch as the 2024 special session has long since been concluded and cannot lawfully continue,” the filing states.
The filing goes on to charge that the special session has gone beyond the “subject-matter scope of its authority granted by the governor’s proclamation [creating the 2024 special session] ‘without first petitioning the governor for further authority by the required 2/3 majority votes of each house.’”
Their suit also argues that if the proposed redistricting were allowed to be enforced, it would require the county clerks to break the law.
That’s because the process for passing a constitutional amendment involves the General Assembly passing the amendment then having an “intervening election” for the General Assembly and then having a new General Assembly vote on the exact same language a second time. Only after that can the amendment go on the ballot for the electorate to vote on.
Virginia Code 30-13 states that votes for the public to pass constitutional amendments require three months’ notice of such a vote, which the clerks state is impossible to comply with and also count this Tuesday’s election as an intervening election.
