Hearings on Virginia’s Tuesday redistricting special election began Monday with the fate of four additional Democratic congressional seats hinging on whether the state’s 45-day early voting period constitutes an ongoing election.
Following the hearing, former Virginia Attorney General and head of the Election Transparency Initiative, Ken Cuccinelli, laid out the current and potential future cases before the Virginia Supreme Court that are challenging the state’s attempt to gerrymander its congressional map in favor of Democrats as the midterm elections approach.
Cuccinelli said there are four constitutional challenges focused on how the amendment was passed and two statutory challenges alleging the vote should be invalidated. (RELATED: Texas Redistricting Upheld By US Supreme Court)
Three of the questions raised in 2025 were argued Monday. Additional questions raised in 2026 are prepared to be argued afterward, assuming the court does not side with the plaintiffs and invalidate the special election, rendering further arguments moot.
The 2025 argument, which Cuccinelli called the strongest, centers on the claim that early voting caused the General Assembly’s approval of the proposed amendment to overlap with the election cycle.
Article XII of the state constitution requires that a proposed amendment be passed by the General Assembly twice, with a House of Delegates election held in between. However, the amendment was first passed on Oct. 31 — just days before Election Day and after many had already voted early. Cuccinelli said the General Assembly’s vote may be ruled invalid as it occurred during, not before, the election.
ETI Press Conference Live https://t.co/nzyYMF8qgM
— Election Transparency Initiative (@ETI_now) April 27, 2026
“The Democrat-controlled General Assembly did that very quickly and rather by surprise,” Cuccinelli said. “Six weeks into Virginia’s seven-and-a-half-week election and after a million people had already voted.”
The Democrat’s attorney argued Monday that although ballots had been cast before the General Assembly’s vote, the process remains constitutional because those ballots were not counted until Election Day.
“So your position requires us to interpret election in such a manner that literally, every single vote that is cast for whatever the office is, is cast before the election even begins,” Justice Wesley Russell asked Matthew Seligman, the Democrats’ attorney.
“Yes, Your Honor,” Seligman responded.
Republicans have argued that knowledge of the proposed amendment could have influenced how voters cast their ballots. Seligman, however, said voters assume that risk when voting early.
A statutory challenge argued Monday that Title 30, Section 13, requires clerks of court to post a proposed amendment over 90 days before an election. Defendants argued that did not occur because the amendment was introduced during the election cycle, Cuccinelli noted.
If these and other claims — including that the first passage was invalid because it occurred during a special session convened for budgeting — are dismissed, another set of challenges related to early voting may follow.
This includes what Cuccinelli described as another violation of Article XII, which requires that an amendment be submitted to voters 90 days after the General Assembly reconvenes to approve it.
Similar to the first objection, the argument is that there was no 90-day gap between the second Jan. 16 General Assembly session and the start of the early voting period, which began 45-days before the April 21 election, meaning voting began less than two months after the General Assembly’s vote.
Democrats have consistently pushed Virginians to vote early, even before the 90-day time frame was completed.
Dan Gottlieb, a spokesperson for Virginians for Fair Elections, bragged to Politico that the YES Campaign drove a “historic early vote turnout.”
Democratic Virginia Gov. Abigail Spanberger also encouraged early voting for the special election, sharing a photo of herself speaking in front of a banner telling Virginians to vote by the April Election Day.
Virginia Attorney General Jay Jones shared a photo of himself casting an early vote on April 3, weeks before election day.
Cuccinelli said that another argument could reach the state’s supreme court reading the ballot language under the state’s Plain English rule, calling it misleading in describing the amendment as a temporary measure to “restore fairness in the upcoming elections.”
We will begin our briefing on the Va. Supreme Court hearing this morning at 1030 am at https://t.co/DRcGBnY5QG
Below is the ballot question, in all its glory pic.twitter.com/btQJmy2Bim
— Ken Cuccinelli II (@KenCuccinelli) April 27, 2026
The maps themselves have also been challenged, as Article II requires that “every electoral district shall be composed of contiguous and compact territory.” Cuccinelli said that the Virginia Supreme Court will not judge the constitutionality of the map unless all other points raised against the legitimacy of the vote are dismissed.
The former attorney general said the court is moving faster than he has ever seen and that he would be shocked if an opinion is not issued by the end of May. In the meantime, he said voters should expect Democrats to campaign as if the amendment will pass, while Republicans continue campaigning under the current district lines.
The court has not issued a stay, meaning the amendment remains the status quo until an opinion or stay is issued.
Cuccinelli said that if the court rules in favor of Republicans, it would result in a significant loss of Democratic spending, noting the party has outspent the GOP three to one. (RELATED: Inside The RNC’s Push To Stop Virginia Redistricting — And Why It Still Fell Short)
Despite Jones saying outside the courtroom that the amendment should pass due to the will of the people, neither spending nor election outcomes were part of Monday’s arguments, Cuccinelli said.
Editor’s note: This piece was corrected to note Cuccinelli said the Democrats outspent Republicans by three to one, not two to one.
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