The Daily Signal - Virginia Redistricting in Court: Judge Rules Democrats Broke the Law on Constitutional Amendment Push | Ken Cuccinelli

Episode Date: January 31, 2026

Former Virginia Attorney General Ken Cuccinelli said a recent state court ruling blocking Democrats’ attempt to advance a redistricting constitutional amendment is firmly rooted in Virginia law and could ultimately be upheld on appeal. Speaking with The Daily Signal’s Joe Thomas, Cuccinelli said the judge found the amendment process violated state law on three independent grounds, including notice requirements, election timing, and limits on special legislative sessions. This ruling is “no slam dunk,” however, says Cuccinelli, Virginia’s former attorney general and current national chairman of the Election Transparency Initiative. “It is not common for a judge to go beyond ruling on one reason to reach an outcome, but the judge, I presume, knows that this is on a tight time schedule. And, in his mind, presumably, there wasn’t time to go up to the Supreme Court and come back down… so he ruled on everything in front of him. So now it goes to the Virginia Supreme Court, and this is no slam dunk.” Learn more about your ad choices. Visit megaphone.fm/adchoices

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And from the election transparency initiative, the great Ken Cuccinelli joins us former acting DHS secretary and attorney general of the Commonwealth of Virginia, state senator there for a while, too. That's from the first place I met. Ken, how are you doing this morning, sir? Warm enough. Warm enough. Okay. So earlier this week, and as we watch the dozen or so states that are still in variegated. flux regarding what is going to happen with their redistricting.

A court case that I know some of the functionaries of was ruled on in Daswell, Virginia, judge saying that the process that the Democrats used to circumvent a lot of the protections in keeping a constitutional amendment, something that is a ponderous process, something that requires time and forethought. But they wanted to circumvent it and take a four-year process and make it a four-year four-month process, Ken. He ruled that they broke the law in doing it and are breaking the law by trying to make court clerks take a vote in April on a constitutional amendment that they cannot post for 90 days because there won't be 90 days for it. Ken, a lot of conservatives, I know, say, Yeah, that's a nice ruling.

It's nice to get a win from the judge, but he's wrong on the law. You know the law pretty good. You were the law for quite a while. So what do you see in this ruling out of Daswell? Well, first of all, the judge ruled on three separate independent bases that the way the Democrats have gone about advancing their redistricting constitutional amendment violates first their own special. session resolution. Second, it violates a statute of Virginia that you were just referencing that requires 90 days notice prior to an election of vote on members of the General Assembly for a constitutional amendment or for the constitutional amendment itself. And third,

that there needs to be an intervening election between two efforts to pass the amendment language and they passed it, I want to say October 31st, six weeks after voting had begun in Virginia. And so the judge also ruled that that election could not count as an intervening election because a million people had already voted. And so I fully expect, well, first of all, it is not common for a judge to go beyond ruling on one reason to reach. an outcome. Okay. But the judge, I presume, knows that this is on a tight time schedule. And they're, in his mind, presumably a judge that there wasn't time to go up to the Supreme Court and come back down and go up and come back down and so forth. So he ruled on everything in front of

him. And so now it goes to the Virginia Supreme Court. And this is no slam dunk. I agree. with his analysis of all three issues, but there is a more than 100-year-old Virginia Supreme Court case that found that you have to wait until after the vote is over. They consider the people voting on the amendment as part of the legislative process. The analogy used in that case was actually a very good one. We wouldn't rule on a bill and its constitutionality after it left the legislature, but while it was awaiting the governor's signature, because it's not a law yet. And the basic ruling is the same, but this one incorporates the people's participation as, part of the process. And of course, when you amend the Constitution, the governor isn't part of the

process. Right. Yeah, there's no. So I think that this could be delayed until after the vote, but I do think fundamentally that the passage in late October was in the middle of an election, not prior to an intervening election. And when it's all said and done, I think that that basis for the judge's ruling is likely to be upheld. The next most likely basis for the court to rule in the same direction is that the General Assembly voted on this constitutional amendment beyond the scope of its own special session boundaries. Which was about the budget, if I'm not mistaken, correct? Correct. That's right. And it takes two-thirds of the legislature to call a special session. So as the judge said, you can just call a special session and trick the minority.

The majority could trick the minority of coming into session and then pass whatever they want by majority. No, no, no. If you want to add to the subject matter of a special session, it has to be by a two-thirds vote. And so I think that's the next most likely basis for the Virginia Supreme Court to rule in favor. of the Republican position. Ken Cuccinelli is on with us, and we're talking about the constitutional amendment attempt in Virginia, which one of those states where it's a little pricklier than just voting and saying,

yeah, we feel like redistricting like they did in, let's see, North Carolina, California, Missouri. Well, California, they had to get the referendum first, but Missouri, Ohio, Texas, the court order, and Utah, and then Maryland, South Carolina, and Washington, are still in process in Florida, I believe, correct? They are definitely still in process. And, you know, so we'll see how some of these others play out. I would note that the U.S. Supreme Court has had a hands-off approach to these cases.

They're not enjoining them. And they did it with both Texas and California. So both sides have benefited from that hands-off. approach in a one circumstance. So, but that means you can expect to see that play out for the rest of the year. So this Virginia case is it goes to the Virginia Supreme Court. One of the things that a lot of my conservative friends are pointing to, and I want your opinion on it, because you, unlike them, seem to think that this will eventually be upheld

through the appellate process, Ken, at the election transparency initiative, I think this fits into your name because one of the things at question is whether the election is the 45-day period in Virginia. I know it's mind-boggling or if it's election day and the and the leftist, Speaker Scott, et cetera, Louise Lucas are saying no, no, that's just a that's just an open window. The election only happens on election day because that's the day we tabulate the votes. But to a voter, when you talk about transparency. I'm voting, so therefore, it's election day. So, I mean, it sounds like Bill Clinton's old. It depends on what the definition of it is, is. But does that carry any weight? Even better, Joe, you should talk to our friend Pat McSweeney. 25 years ago, he was involved in litigation

all over the country. Now, mind you, this is before 45-day elections and Minnesota's 40s. six-day election, and they were seeking to have election day declared the entire election, and that was universally rejected. Okay. So by that, I mean in several circuits, based on Supreme Court ruling, and meaning they applied Supreme Court election logic to a circuit court of appeals, fourth circuit type, level of rulings. And it was universally held to be the opposite. Well, here we are 25 years later, and it's the liberal Democrats who want to have Election Day declared the whole election. The U.S.

Supreme Court said, no, an election is the whole process of the election. It isn't just the last day, and because people are voting before that and so forth. So unless Virginia is going to determine whether Virginia Supreme Court will determine an election to be something very different from how this has been resolved at the federal level, which can happen. State is a different sovereign, but the English is still the English. So what is an election? This is one of those areas where I would expect to see the Virginia Supreme Court land in basically the same place that federal courts have when they have addressed this question. And if they do,

to pass a constitutional amendment, you're going to have to have passed it before voting opens 45 days before election day, because as you and I have talked about before, we don't have an election day in Virginia anymore. We have an election season. Now, one funny thing is it's the Democrats who gave us this election season. Last time they had control of both body. and the governorship, and now it's going to come back and haunt them a bit. And it is overdone, just for the record. We don't need a 45-day election. No, I know that. Even if you believe in early in-person voting for no reason, a week or two would be more than adequate. Yeah, right. As the director of the election transparency initiative, Ken, I have to ask,

Save Act finally got filed in the House, pleased, dubious, concerned, water, down. Do you tell us where you're... Please, Dan, dubious. So it passed on a bipartisan basis out of the House. There were four or five Democrats who voted for it. Two Congresses in a row, by the way. And for the first time,

Majority Leader Thune talked about it yesterday about getting it passed through the Senate. So getting the Senate leadership to even pay attention to it is an immense hurdle,

frankly, that's a milestone. So for the first time, I'm seeing the opportunity that it may be attached to must pass legislation. And for your viewers in Rio Linda, as we were talking about Rush Limbaugh earlier, must pass legislation is legislation that virtually every elected official feels like they have to vote for, for example, funding the Defense Department, you know, that kind of thing. Ken Cucinelli, the election transparency initiative. Thank you so much, sir. Your blessing to be able to talk to, and you have a great morning. All right.

Have a warm weekend, Joe. We're trying.