The confluence of a few unfortunate circumstances resulted in the Virginia Supreme Court holding that the state constitutional amendment to allow the redistricting plan as a counterbalance to other states’ legislative redistricting plans to eliminate congressional districts deemed “safely” Democratic was unconstitutional. Wags and cynics will imagine this ruling to be the product of radical rightist activists. It was not.

Unlike a state like Texas, which can redraw its districts by legislative fiat, Virginia’s Constitution required that congressional district be fairly drawn by commission to avoid the plague of gerrymandering. It further required that any change to the Constitution span an election, so that two legislative votes, one before the election and one after, be required to prevent whimsical changes, enabling voters to decide whether to vote for, or against, legislators based on their position toward the change. Its purpose was to create a process so that the state constitutional amendments would only be approved after “deliberate consideration and careful scrutiny that they deserve.”

Here, the first legislative approval occurred after “early voting” had begun. The Virginia Supreme Court found that since voting had already commenced, the interim election requirement had not been satisfied.

While the Commonwealth is free by its lights to do the right thing for the right reason, the Rule of Law requires that it be done the right way. Under the Constitution of Virginia, the right way “necessitate[s] compliance with the requirements of a deliberately lengthy, precise, and balanced procedure,” Coleman, 219 Va. at 153, governing the lawful adoption of constitutional amendments. “[S]trict compliance with these mandatory provisions is required in order that all proposed constitutional amendments shall receive the deliberate consideration and careful scrutiny that they deserve.” Id. at 154.

The dissent argued that this redefined the meaning of “election” to include the early voting period rather than just election day.

This Court has long recognized that our “‘Constitution is certain and fixed.'” Staples v. Gilmer, 183 Va 338, 350 (1944) (quoting Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 308 (Pa. 1795)). “‘[I]t contains the permanent will of the people,'” and, therefore, its meaning can only be altered by the people. Id. (quoting Vanhorne’s Lessee, 2 U.S. (2 Dall.) at 308) (emphasis added). Notwithstanding this bedrock principle, today the majority has broadened the meaning of the word “election,” as used in the Virginia Constitution, to include the early voting period. This is in direct conflict with how both Virginia and federal law define an election. Under the facts of this case, I believe the circuit court erred and I respectfully disagree with the majority’s conclusion that the General Assembly did not strictly comply with Virginia’s constitutional requirements. For this reason, I must respectfully dissent.

Does “election” mean one day or the period of time during which citizens are entitled to vote? Was it wrong to deny early voters the opportunity to express their views by electing legislators who supported, or not, the amendment? Was it wrong to deny voters the outcome of voting on the redrawing of the map?

Neither the majority nor dissent took unprincipled positions, both having some merit to their position, but the point of a ruling is to reach a determination. The Virginia Supreme Court did so, in a principled fashion, and it ruled the redistricting amendment unconstitutional under the state Constitution. It was a crushing defeat for Democrats, but that doesn’t make it partisan or radical. Sometimes, you lose.

While the combination of the Supreme Court’s Callais decision and this Virginia ruling has set in motion a partisan war that serves to make congressional elections a by-product of widespread cynical gerrymandering rather than a reflection of the will of the voters, perhaps one of the most noxiously anti-democratic efforts to rig an election possible, don’t blame the Virginia Supreme Court for “losing” safe districts for Democrats. The court did its job and its ruling, no matter what outcome you would have preferred, was grounded in a principled reading of the state Constitution.

If you want to find blame, it’s in the legislatures that decided to sell out their citizens, their voters, at the open and notorious behest of Trump. For all his baseless bluster about rigged elections, we’re finally going to have one and Trump demanded the rigging. If citizens, voters, think gerrymandered districts that serve to deprive them or their fellow citizens of a voice are wrong and fundamentally anti-democratic, they can still do so at the voting booth, whether on election day, early or by mail, as the case may be.

No matter how mangled the redrawn districts may be, they are no match for the voters if they exercise the franchise to tell their state legislatures, governors, and the president, that they will not be denied their voice. Vote for yourself. Vote for your neighbors and family. Vote against rigged elections, or your vote won’t matter when rigged elections are all we have left.