The Virginia gerrymandering referendum that narrowly passed this week is headed to the Supreme Court of Virginia, and former Attorney General Ken Cuccinelli explains why the way Democrats pushed it through may leave it legally vulnerable; multiple constitutional challenges focus on timing during ongoing voting, special session limits, ballot language, and strikingly contorted map lines that could violate compactness and contiguity rules. Cuccinelli lays out the procedural faults that could lead the court to toss the measure, and the schedule is compressed with briefs filed and arguments slated for Monday.
“If I were a gambling man, I’d bet on it.” That is Ken Cuccinelli, reflecting a skeptical view of how the referendum survived the push to get it before voters. He told the interviewer the referendum faces a heavy burden: Democrats must prove they obeyed the state constitution in several distinct ways to keep this result intact. The tone is blunt and unapologetic, arguing that the maneuvering was brazen and legally weak.
Cuccinelli traces the first major problem to the constitutional rule that an amendment must pass the General Assembly twice in the exact same form, separated by an intervening election. The core dispute is whether the 2025 election can count as that intervening election when voting was already underway for weeks before the General Assembly’s initial vote. He calls that interpretation strained and notes that courts around the country have rejected similar federal arguments.
Another major angle is that the first passage occurred during a special session that had been called solely to address the budget. Virginia law restricts what can be done in a special session, and Cuccinelli argues the amendment was outside the lawful scope because the special session’s purpose had been accomplished. That raises a plain-English constitutional claim: you can’t treat a budget-only session as a free-for-all to amend the state constitution.
Timing issues continue to pile up. Virginia’s unusual 45-day voting period matters here, because votes began long before some of the key legislative steps. Cuccinelli points out that ballots were being cast for weeks when Democrats made pivotal moves, which undermines the claim that the required procedural pause between passages actually occurred. He frames this as not just technical nitpicking but a real flaw that goes to the heart of how amendments are supposed to work.
Then there is the map itself, which Cuccinelli describes as the most gerrymandered Virginia has seen in decades. The state constitution requires districts be compact and contiguous, and he argues these maps fail that test. If the court reaches the map issue, he suggests the evidence of extreme splitting and odd district shapes will be persuasive, but he acknowledges the court will only reach that question if it upholds the referendum first.
Ballot language is another front. A Tazewell County judge already flagged problematic wording and added a separate constitutional concern; the state attorney general plans to appeal that ruling. Cuccinelli observes that the Supreme Court’s fast docket and the sequence of appeals mean the court could dispose of the case quickly by deciding on the primary procedural issues first. He emphasizes that challengers only need to win one argument to invalidate the referendum, while defenders must prevail on all fronts.
Cuccinelli also addresses the politics of the Virginia Supreme Court itself. Judges serve 12-year terms and are elected by the General Assembly, which leads to anxieties about cronyism. He counters that concern by noting precedent and the bench’s mixed composition; he thinks some issues, like the intervening-election claim, could produce a unanimous ruling because the legal history is clear. Still, he recognizes Republicans’ skepticism about judicial independence given the reappointment process.
Practically speaking, the litigation is moving at a rare clip. Final briefs on the key questions were filed and the court scheduled arguments for Monday morning, which Cuccinelli says is appropriate given the need for swift clarity. He predicts a ruling could come by mid-May, arguing that speed is necessary to settle the rules around amending the constitution and to prevent similar procedural shortcuts in the future.
Beyond the courtroom, Cuccinelli ties Virginia’s political shifts to broader national forces, arguing Northern Virginia’s growth and federal employment patterns tilt the region leftward. He frames the long-term fix as requiring institutional reforms such as a balanced budget requirement at the federal level to curb the expansion that reshapes state politics. That’s his policy take alongside the legal strategy: stop the federal growth that fuels demographic changes and enforce state constitutional rules that check hasty, partisan maneuvers.
WATCH:
TRANSCRIPT:
Teri Christoph (01:44)
Hey everybody, I am really happy to welcome today Ken Cuccinelli. He was Attorney General of Virginia back in the day, but a great expert. He’s really kept his eye on the legal wranglings around the gerrymandering referendum, which of course just passed this week in Virginia. So welcome Attorney General Cuccinelli. Thrilled to have you as I was just mentioning, you were my state Senator back in the day. So we are both long time Virginians.
Ken Cuccinelli (02:10)
Yes, yes, and a little bit sad this week, but there’s hope.
Teri Christoph (02:14)
There is, and I actually thought, I know that there was a big ruling out of Tazewell County yesterday, but I actually thought a better place might be to start what happened before the referendum. There were legal challenges to this referendum going back months, weeks, and the Supreme Court of Virginia sort of punted on it. And I know Tazewell’s kind of been a main figure in all of this. So it might be helpful to know what happened before we even went to the polls earlier this week.
Ken Cuccinelli (02:41)
Yeah. So the simple reason is punted sounds like ducked and, under Virginia law, over a hundred years of precedent, ⁓ the vote in the referendum is part of the legislative process and the courts will not take up a challenge to a legislative act until after the legislative process is complete. And, the easy analogy is the people voting yes or no, are the equivalent of a governor signing or vetoing a piece of legislation that comes to her desk. And if she vetoes it, it’s over, right? There’s nothing to consider.
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