The Supreme Court of Virginia issued an order today putting the redistricting referendum back on track. The case arose after the Circuit Court of Tazewell County entered a temporary restraining order (TRO) halting all election preparations for a proposed redistricting amendment.
The Supreme Court stepped in on an emergency petition for review under Code § 8.01-626, which is a statute that technically applies only to preliminary injunctions, not TROs. But the Court treated the TRO as a de facto preliminary injunction because of its sweeping scope and impact. The Court stayed the TRO, meaning the election moves forward, but it pointedly declined to validate the underlying process by which the General Assembly advanced the amendment.
The Court invoked the longstanding prudential principle from Scott v. James (1912) that courts of equity should not enjoin the holding of an election. The Court emphasized that this is a timing issue, not a jurisdictional bar to judicial review. If the amendment is rejected, the challenges become moot. If it passes, the courts retain full authority to review the validity of the process through declaratory judgment and to fashion appropriate equitable remedies at that point.
And the Court went out of its way to signal that the stay should not be read as a merits ruling. It catalogued the serious constitutional challenges in both this case and the companion Scott v. McDougle case, including claims that the General Assembly improperly expanded the scope of a special session (rendering first passage void ab initio), that no qualifying intervening House election occurred because early voting began before first passage, that statutory notice requirements under former Code § 30-13 were violated, that the ballot language is misleading under the Article XII Submission Clause, that the 90-day waiting period was not satisfied given the early voting start date, and that HB 1384 violates the Form of Laws Clause by embracing multiple objects not all reflected in the bill’s title. The Court characterized these as issues “of grave concern.”
The practical upshot is that the election proceeds, but the Court has essentially laid a roadmap for post-election review and made clear it views the process challenges as substantial.
A Virginia Appellate Law Blog 