In Virginia, Republicans attack the map and the right to vote

Three million Virginians went to the polls to decide whether the legislature could redraw the state’s congressional maps. Tens of millions were spent on both sides. When the votes were tallied, the yes campaign had prevailed by 2.1%.

Despite Donald Trump’s claims to the contrary, this was a free and fair election. There are no legitimate reasons to suspect fraud or malfeasance. Even the measure’s opponents acknowledge that their side garnered fewer votes.

Still, despite the will of the voters, Republicans have turned to the courts to overturn the election and discard the results. The day after the election, the Republican National Committee obtained an order from a local judge in ruby red Tazewell County that declared “all votes” cast in the election “ineffective.” That order has been appealed to the state Supreme Court.

That is only one of several lawsuits Republicans have filed to try to nullify the election. Another case, brought before the same Tazewell judge, is set to be heard by the state Supreme Court on Monday.

I have closely followed all these legal challenges. My law firm has been involved in litigating many of them. 

I am absolutely convinced that the Virginia legislature’s map is lawful and constitutional. I have no doubt that, on the merits, the results in Virginia should stand and I believe that they will.

However, I worry that in all the back and forth about the importance of the redistricting effort and the arcane legal questions, we are paying too little attention to the scale of the GOP’s attack on democracy. Republicans are asking the courts to throw out 3 million votes in an election that they lost.

For Republicans, democracy is nothing more than a word. 

They are content if every person who waited in line to vote or took time off from work to cast their ballot did it for naught. They seek a result that would mean that every election worker who worked the polls wasted their time. They want the people who knocked doors or canvassed on either side of this question to feel as though they have accomplished nothing.

This callous treatment of elections may not be surprising coming from today’s Republican Party, but it is breathtaking nonetheless. It is also inconsistent with the recent admonition from the U.S. Supreme Court.

Despite the will of the voters, Republicans have turned to the courts to overturn the election and discard the results.

Earlier this year, the Court addressed when the judiciary should involve itself in elections. At issue was a lawsuit brought by a conservative Republican member of Congress. 

Writing for the majority — including all the conservative justices — Chief Justice Roberts quoted approvingly from an opinion by conservative icon Justice Antonin Scalia, written during the back and forth over Bush v. Gore in 2000:

The democratic consequences can be even more dire if courts intervene only after votes have been counted. ‘Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.’

Despite this admonition, Republicans shamelessly continue to attack the results in Virginia.

This is not a new phenomenon, and Virginia is not the only recent example. After the 2024 election, Republicans spent six months trying to overturn the results of a North Carolina judicial election by arguing that more than 100,000 votes should be discarded.

As with the Virginia election, North Carolina Republicans did not argue that those ballots were fraudulent. Instead, they argued that the registration instructions voters were given were wrong and thus their ballots should be thrown out after the fact.

Ultimately, a federal judge appointed by Donald Trump put an end to this gambit, writing: “Permitting parties to upend the set rules of an election after the election has taken place can only produce confusion and turmoil which threatens to undermine public confidence in the federal courts, state agencies, and the elections themselves.”

It is worth noting that both the conservatives on the Supreme Court and the Trump-appointed federal judge in North Carolina explicitly relied on the public backlash against dismissing election results in their opinions. Justice Roberts warned of the effect it would have on “the public acceptance democratic stability requires,” while the North Carolina judge feared undermining public confidence in the courts, the state and elections.

Of course, undermining public confidence in elections is precisely what Donald Trump wants. He has spent his entire political career trying to weaken democratic stability. As we head towards the midterm elections, Trump would want nothing more than to overturn Virginia’s redistricting plans while also undermining confidence in elections.

If the pro-democracy movement and its lawyers rely only on the technicalities and intricacies of the laws, rules and regulations to win cases, they are ceding important ground.

Yes, Virginia’s Supreme Court should reject the legal arguments being advanced by Republicans. But they should also be forced to confront the larger threats lurking behind the brazen claims being advanced by the GOP.

Those 3 million Virginia voters deserve not only a new map but to have their votes counted. The map is an important outcome, but the counted vote is something more fundamental. It is core to democracy itself — regardless of the policy or candidate.

We must never allow Republicans to conflate the two, because doing so diminishes the very principle that holds democracy together regardless of who wins.

If conservative justices and judges can see this, so must we.