Amicus Curiae Brief — Don Scott, in His Official Capacity as Speaker of the Virginia House of Delegates, et al., Applicants v. Ryan T. McDougle, Virginia State Senator and Legislative Commissioner for the Virginia Redistricting Commission, et al.

No. 25A1240

In the Supreme Court of the United States

DON SCOTT,

IN HIS OFFICIAL CAPACITY AS

SPEAKER OF THE VIRGINIA HOUSE OF DELEGATES, ET AL.,

Applicants,

v.

RYAN T. MCDOUGLE,

VIRGINIA STATE SENATOR AND LEGISLATIVE COMMISSIONER

FOR THE VIRGINIA REDISTRICTING COMMISSION, ET AL.,

Respondents.

ON EMERGENCY APPLICATION FOR STAY

TO THE SUPREME COURT OF VIRGINIA

BRIEF OF AMICUS CURIAE

STATE OF WEST VIRGINIA

IN SUPPORT OF RESPONDENTS

JOHN B. MCCUSKEY

Attorney General

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

OFFICE OF THE

WEST VIRGINIA ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305-0220

mwilliams@wvago.gov

(304) 558-2021

Counsel for Amicus Curiae State of West Virginia

TABLE OF CONTENTS

Introduction And Interests Of Amicus Curiae ...........................................................................1

Summary Of The Argument .........................................................................................................2

Argument ........................................................................................................................................3

I.

Virginia’s application does not present any cognizable federal question ....................3

II.

The Supreme Court of Virginia did not transgress the ordinary bounds of

judicial review ....................................................................................................................8

Conclusion.....................................................................................................................................13

i

TABLE OF AUTHORITIES

Page(s)

Cases

Atl. Cleaners & Dyers v. United States,

286 U.S. 427 (1932) .................................................................................................................11

Barber v. Thomas,

560 U.S. 474 (2010) .................................................................................................................11

Bush v. Gore,

531 U.S. 98 (2000) .....................................................................................................................9

Coleman v. Thompson,

501 U.S. 722 (1991) ...................................................................................................................7

Eberle v. People of State of Michigan,

232 U.S. 700 (1914) ...................................................................................................................9

Env’t Def. v. Duke Energy Corp.,

549 U.S. 561 (2007) .................................................................................................................11

Ford v. Georgia,

498 U.S. 411 (1991) ...................................................................................................................7

Glossip v. Oklahoma,

604 U.S. 226 (2025) ...................................................................................................................6

Herb v. Pitcairn,

324 U.S. 117 (1945) ...............................................................................................................3, 7

Honeyman v. Hanan,

300 U.S. 14 (1937) .....................................................................................................................3

Lamar v. United States,

240 U.S. 60 (1916) ...................................................................................................................11

Lee v. Kemna,

534 U.S. 362 (2002) ...................................................................................................................7

Lyle v. Artuz,

No. 03-CV-5155, 2006 WL 1517750 (E.D.N.Y. May 31, 2006).............................................8

Martin v. Hunter’s Lessee,

14 U.S. 304 (1816) .....................................................................................................................2

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ..................................................................................................9

Merrill v. Milligan,

142 S. Ct. 879 (2022)...............................................................................................................13

ii

Michigan v. Long,

463 U.S. 1032 (1983) .................................................................................................................6

Minnesota v. Nat’l Tea Co.,

309 U.S. 551 (1940) ...................................................................................................................4

Moore v. Harper,

600 U.S. 1 (2023)............................................................................................................. 8, 9, 10

Murdock v. City of Memphis,

87 U.S. 590, 22 L. Ed. 429 (1874) ............................................................................................4

N.Y. Life Ins. Co. v. Hendren,

92 U.S. 286 (1875) .....................................................................................................................3

Nadworny v. Fair,

872 F.2d 1093 (1st Cir. 1989) ..................................................................................................5

Noel Canning v. NLRB,

705 F.3d 490 (D.C. Cir. 2013) ................................................................................................11

Purcell v. Gonzalez,

549 U.S. 1 (2006).....................................................................................................................13

Stewart v. Smith,

536 U.S. 856 (2002) ...................................................................................................................7

Three Affiliated Tribes of Fort Berthold Rsrv. v. Wold Eng’g, P.C.,

467 U.S. 138 (1984) ...................................................................................................................6

Toghill v. Commonwealth,

768 S.E.2d 674 (Va. 2015) ........................................................................................................7

Town of E. Hartford v. Hartford Bridge Co.,

51 U.S. 511 (1850) .....................................................................................................................1

United Gas Pipe Line Co. v. Ideal Cement Co.,

369 U.S. 134 (1962) ...................................................................................................................1

United States v. Balsys,

524 U.S. 666 (1998) .................................................................................................................11

United States v. Classic,

313 U.S. 299 (1941) .................................................................................................................12

Ward v. Bd. of Cnty. Comm’rs of Love Cnty.,

253 U.S. 17 (1920) .....................................................................................................................8

Waters-Pierce Oil Co. v. Texas,

212 U.S. 86 (1909) .....................................................................................................................3

Webb v. Webb,

451 U.S. 493 (1981) .................................................................................................................10

iii

West v. Am. Tel. & Tel. Co.,

311 U.S. 223 (1940) ...................................................................................................................1

Statutes

28 U.S.C. § 1257 .............................................................................................................................3

Other Authorities

Anthony M. Ciolli,

Territorial Constitutional Law, 58 IDAHO L. REV. 206 (2022) ..........................................4

Br. of Amici Curiae of State of W. Va., et al.,

Chevron v. Plaquemines Parish,

146 S. Ct. 1052 (2026) (No. 24-813), 2025 WL 2662994 ........................................................2

David A. Schlueter,

Judicial Federalism and Supreme Court Review of State Court

Decisions: A Sensible Balance Emerges,

59 NOTRE DAME L. REV. 1079 (1984).....................................................................................4

David Landau, et al.,

Federalism for the Worst Case,

105 IOWA L. REV. 1187 (2020) .................................................................................................5

FED. PRAC. & PROC. DESKBOOK (2d ed. Apr. 2026 update) ......................................................5

Laura S. Fitzgerald,

Suspecting the States: Supreme Court Review of State-Court State-Law

Judgments,

101 MICH. L. REV. 80 (2002) ...................................................................................................1

Leah M. Litman & Katherine Shaw,

The “Bounds” of Moore: Pluralism and State Judicial Review,

YALE L. J. REV. FORUM, Mar. 29, 2024, at 881 ...................................................................12

Richard H. Pildes,

Judging “New Law” in Election Disputes,

29 FLA. ST. U. L. REV. 691 (2001) ...........................................................................................9

ROSS SANDLER & DAVID SCHOENBROD,

DEMOCRACY BY DECREE: WHAT HAPPENS WHEN COURTS RUN

GOVERNMENT (2003) .............................................................................................................13

S. CT. R. 10 ......................................................................................................................................3

Vikram David Amar & Akhil Reed Amar,

Eradicating Bush-League Arguments Root and Branch: The Article II

Independent-State-Legislature Notion and Related Rubbish,

2021 SUP. CT. REV. 1 (2021) ....................................................................................................8

iv

INTRODUCTION AND INTERESTS OF AMICUS CURIAE

This application asks the Court to do something it has long resisted: review a state

court’s interpretation of its own constitution in a matter implicating purely state law.

The Supreme Court of Virginia recently decided an election issue under the

Constitution of the Commonwealth of Virginia. That decision should have been the end of

the matter. After all, “the highest court of the state is the final arbiter of what is state law.”

West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236 (1940). And the Supreme Court of Virginia

“alone” can define the Virginia Constitution’s “authoritative meaning.” United Gas Pipe

Line Co. v. Ideal Cement Co., 369 U.S. 134, 135 (1962). But Applicants now ask this Court

to push aside these fundamental principles and upset this “prima facie final” decision. Town

of E. Hartford v. Hartford Bridge Co., 51 U.S. 511, 539 (1850). They seek, in effect, a second

appeal—this time in a court that lacks jurisdiction to hear it.

In asking this Court to intervene, Applicants seek more than the Constitution can

bear. A passing allusion to federal law cannot be enough to subject a state-court judgment

to federal review. Contra App.12–17. Nor can vehement disagreement with the lower

court’s reasoning furnish jurisdiction, even when the case involves an election. Contra

App.17–22. If such thin gruel were enough to trigger this Court’s review, then the “states’

dignity and independence”—raised to the level of “constitutional status” in this Court’s

federalism cases—would be illusory. Laura S. Fitzgerald, Suspecting the States: Supreme

Court Review of State-Court State-Law Judgments, 101 MICH. L. REV. 80, 94 (2002).

So West Virginia files this brief to speak up for those States that remain committed

to the notion that state courts should decide state issues with finality. And while West

Virginia has argued elsewhere that federal courts need to step in when state courts are

1

improvidently deciding national issues, see Br. of Amici Curiae of State of W. Va., et al., at

16-22, Chevron v. Plaquemines Parish, 146 S. Ct. 1052 (2026) (No. 24-813), 2025 WL

2662994, no fair reader could think the Supreme Court of Virginia was doing that here. The

Supreme Court merely held that, “[u]nder the Constitution of Virginia,” “the

Commonwealth” had not “done [things] the right way” when it “submitted a proposed

constitutional amendment to Virginia voters” about Virginia redistricting without an

intervening Virginia House of Delegates election. App.29a-30a (emphasis added).

Altogether, this application presents state-law issues and nothing more. The Court

should deny it.

SUMMARY OF THE ARGUMENT

Virginia has come a long way from once arguing that this Court has no power of

review over its courts at all. See generally Martin v. Hunter’s Lessee, 14 U.S. 304 (1816).

Applicants now point to “two critical issues of federal law” that they say justify emergency

relief here. Appl.12. But this case is state-centered, and the Court cannot properly reach

either question.

I.

Federal courts can only review state-court decisions that decide federal

questions. The state court here did not. At most, it referenced some federal precedents as

part of a multi-faceted analysis of what “election” means in the Virginia Constitution. But

nothing suggests it squarely decided or relied on federal law in substantial part. And even

if the court had relied on federal law, it also relied on adequate and independent state-law

grounds that separately sustain the judgment. That choice defeats jurisdiction.

2

II.

Applicants also invoke the Elections Clause, insisting that the Virginia

Supreme Court so abandoned its judicial function that it usurped the role of the legislature.

Not so. The decision undertook ordinary judicial analysis of the relevant authorities,

explaining multiple compelling bases that led it to decide as it did. Although Applicants

strongly disagree, that disagreement cannot greenlight federal oversight. Split decisions

and sharp words are de rigueur in state appellate courts—just as they are in all courts—

and nothing is so different about election law that these ordinary events justify federal

attention to the state-law issue.

ARGUMENT

I.

VIRGINIA’S APPLICATION DOES NOT PRESENT ANY COGNIZABLE

FEDERAL QUESTION.

This Court’s “jurisdiction over the decisions of the State courts is limited.” N.Y. Life

Ins. Co. v. Hendren, 92 U.S. 286, 287 (1875). The Court’s “only power over state judgments

is to correct them to the extent that they incorrectly adjudge federal rights.” Herb v.

Pitcairn, 324 U.S. 117, 125-26 (1945). So where the state court “did not determine a Federal

question, nor necessarily decide one adversely to plaintiff in error, controlling in character,”

then the Court must decline to review its decision. Waters-Pierce Oil Co. v. Texas, 212

U.S. 86, 106 (1909). And “[a] similar result follows where, even assuming that the state

court has formally determined a federal question, it does not appear to have been a

substantial one.” Honeyman v. Hanan, 300 U.S. 14, 23 (1937).

These principles are reflected in a statute, 28 U.S.C. § 1257(a) (referencing appeals

from state courts premised on rights and authorities of “the United States”), and this

Court’s own rules, see S. CT. R. 10 (requiring “an important federal question” or “important

3

question of federal law” before review of a state court judgment can be had). But even

beyond those sources, “the limitation on the power of [this Court] to review the correctness

of state courts’ interpretations of their own state constitutions appears predicated on the

federalist principles inherent in the structural provisions of the United States

Constitution.” Anthony M. Ciolli, Territorial Constitutional Law, 58 IDAHO L. REV. 206,

216 (2022). It is, at bottom, a manifestation of mutual respect between state and federal

courts.

This jurisdictional principle produces several benefits. Most obviously, because of

their expertise and sovereign power, “[t]he State Courts are the appropriate tribunals, as

this court has repeatedly held, for the decision of questions arising under their local law.”

Murdock v. City of Memphis, 87 U.S. 590, 626, 22 L. Ed. 429 (1874). Ensuring that Virginia

courts decide Virginia law means Virginians can truly govern themselves; the state court's

justices are themselves Virginians, and the broader Virginia population indirectly elects

them. It also ensures that this Court devotes its precious attention to truly national issues.

And it creates finality in state court judgments, while a broader understanding of the right

to review would instead invite second and third bites at the apple.

“The classic example of a nonreviewable state court decision arises when the state

court relied exclusively upon specific state constitutional provisions to strike down a state

[action].” David A. Schlueter, Judicial Federalism and Supreme Court Review of State

Court Decisions: A Sensible Balance Emerges, 59 NOTRE DAME L. REV. 1079, 1095 (1984).

For good reason: “[i]t is fundamental that state courts be left free and unfettered by [this

Court] in interpreting their state constitutions.” Minnesota v. Nat’l Tea Co., 309 U.S. 551,

4

557 (1940). Being too quick to find a federal hook in a state constitutional case risks an

undue federalization and homogenization of all constitutional protections—a risk that’s

already great enough in the era of ever-more aggressive constitutional incorporation. See,

e.g., David Landau, et al., Federalism for the Worst Case, 105 IOWA L. REV. 1187, 1216

(2020) (describing how federal-court review of essentially all state-court decisions in Mexico

“was a key tool of centralization during the authoritarian regime that [formerly] governed

Mexico”).

This case fits the “classic example.” The challengers to the Virginia redistricting

effort raised no federal claim. The briefs are state-focused all the way down. See App.112a216a. We see no “specific constitutional language, constitutional citation, appropriate

federal precedent, substantive constitutional analogy, argument with no masking state-law

character, and the like.” Nadworny v. Fair, 872 F.2d 1093, 1101 (1st Cir. 1989). Nor did

Applicants assert any federal-law defense to the redistricting claims. So while “[i]t must

be clear from the record that a claim under a federal statute or the federal constitution was

presented to the state courts,” no such claim can be found here. 20 FED. PRAC. & PROC.

DESKBOOK § 114 (2d ed. Apr. 2026 update).

The opinion tracks Applicants’ original non-federal framing. The opinion’s lone

engagement with federal authority is a passing reference to federal sources in explaining

the ordinary meaning of the word “election.” App.19a–20a. No court has ever held that

kind of background observation is sufficient to create federal jurisdiction. The opinion

otherwise reads exactly as one would expect a state constitutional decision to read: by

discussing the text, purpose, structure, history, and common understanding of the key

5

constitutional provisions, relying on state precedents, historical sources, dictionaries, and

contemporaneous commentary.

It also addresses contrary arguments, including the

dissent’s unusual suggestion that the majority’s reading would conflict with federal law

governing federal elections—elections not at issue in that aspect of the case. App.27a-28a,

see also App.39a.n.8 (Powell, C.J., dissenting) (acknowledging that “the specific election at

issue in this case was the general election of members of the House of Delegates”). In sum,

the decision has next to nothing definitive to say about federal law—and thus nothing

“substantial” for this Court to review. Certainly nothing hints that the Virginia court

“believed that federal law required it to” decide as it did. Glossip v. Oklahoma, 604 U.S.

226, 243 (2025).

In response, Applicants can only suggest that, in defining “election” in the Virginia

Constitution, the lower court was “influenced” by and decided issues “interwoven with”

federal law. See Appl.12 (citing Three Affiliated Tribes of Fort Berthold Rsrv. v. Wold

Eng’g, P.C., 467 U.S. 138, 152 (1984), and Michigan v. Long, 463 U.S. 1032, 1040 (1983)).

But no decision of this Court has held that a state court’s mere citation to federal authority,

as one persuasive authority among many, transforms a state-law decision into a federal one.

Long itself confirms that state courts can freely cite federal precedent without eliciting

federal review; they need only make clear that “the federal cases are being used only for

the purpose of guidance, and do not themselves compel the result that the court has

reached.” Long, 463 U.S. at 1041. Virginia’s high court did just that, as it the federal

authorities as a single confirmatory data point that it recognized wasn’t binding. Indeed,

the court noted a lack of “binding[] federal law” on the particular definition of “election.”

6

App.28a. That approach—considering federal authority while recognizing its non-binding

nature—is consistent with longstanding Virginia practice.

See, e.g., Toghill v.

Commonwealth, 768 S.E.2d 674, 677 (Va. 2015) (“While this Court considers Fourth Circuit

decisions as persuasive authority, such decisions are not binding precedent for decisions of

this Court.”).

Even if some federal thread could be found in the opinion below, this Court still lacks

jurisdiction. At the very least, the decision contains “adequate and independent state

grounds” to support the judgment, precluding review. Pitcairn, 324 U.S. at 125. In such a

situation, “resolution of any independent federal ground for the decision could not affect

the judgment and would therefore be advisory.” Coleman v. Thompson, 501 U.S. 722, 729

(1991) (noting this requirement is jurisdictional). The decision below is “independent” of

federal law in the relevant sense: it does not “depend on a federal constitutional [or

statutory] ruling on the merits.” Stewart v. Smith, 536 U.S. 856, 860 (2002). It instead

turned on the Court’s assessment of history, structure, purpose, text, and other authority

pertaining specifically to the Virginia Constitution.

And this mode of constitutional

analysis—grounded in text, history, structure, and purpose—is the kind of clearly

established and consistently followed approach that constitutes an “adequate” ground. Lee

v. Kemna, 534 U.S. 362, 380-88 (2002); Ford v. Georgia, 498 U.S. 411, 423-25 (1991).

Applicants do not—because they cannot—argue that the judgment below would fail

absent any federal-law component. Remember that the state constitutional provision at

issue long predates the federal election statutes Applicants invoke. Why then would

modern federal election laws govern the issue? The state-law grounds independently

7

sustain the Supreme Court of Virginia’s decision, and that conclusion marks the end of this

Court’s jurisdictional work.

Accepting jurisdiction here would require this Court to treat any state constitutional

decision that glances at federal authority as a federal case. Yet such a rule would swallow

the independence this Court has always respected as to state courts. Because the Virginia

Supreme Court decided Virginia law, there’s nothing more for this Court to review, let alone

grant emergency relief on.

II.

THE SUPREME COURT OF VIRGINIA DID NOT TRANSGRESS THE

ORDINARY BOUNDS OF JUDICIAL REVIEW.

Applicants also say this case presents a rare instance in which a state court has

“transgress[ed] the ordinary bounds of judicial review” such that the court has “arrogate[d]

to [itself] the power vested in state legislatures to regulate federal elections.” Moore v.

Harper, 600 U.S. 1, 36 (2023). The Court has invoked this standard (and similar ones) when

state courts “read state law in such a manner as to circumvent federal constitutional

provisions.” Id. at 35; see also Lyle v. Artuz, No. 03-CV-5155, 2006 WL 1517750, at *10

(E.D.N.Y. May 31, 2006) (suggesting this principle is designed to prevent “obvious

subterfuge to evade consideration of a federal issue”). This high standard should thus not

be met “[a]s long as state judges … are engaged in the same kinds of judicial processes and

doing the same kinds of interpretive things they have done historically under state law in

resolving state election contests.” Vikram David Amar & Akhil Reed Amar, Eradicating

Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature

Notion and Related Rubbish, 2021 SUP. CT. REV. 1, 48 (2021); see also, e.g., Ward v. Bd. of

Cnty. Comm’rs of Love Cnty., 253 U.S. 17, 22-23 (1920) (allowing federal courts to evaluate

8

whether federal rights were “denied in substance and effect, as by putting forward

nonfederal grounds of decision that were without any fair or substantial support” (emphasis

added)); Bush v. Gore, 531 U.S. 98, 120 (2000) (Rehnquist, C.J., concurring) (finding “no

basis” for a state decision and its reliance on an “entirely irrelevant” provision).

The Elections Clause does not write a blank check for Federal review. Even in the

elections context, mere disagreement with the state court’s reading of state election-related

law should not be enough for this Court to second guess it. Eberle v. People of State of

Michigan, 232 U.S. 700, 705 (1914). “When potential conflicts between federal and state

courts come down to little more than how best to read statutory [or constitutional] texts—

particularly those replete with seeming gaps and ambiguities—the difference in

interpretation will frequently amount to [merely] a philosophical difference over how courts

should generally go about interpreting statutes” or constitutional provisions. Richard H.

Pildes, Judging “New Law” in Election Disputes, 29 FLA. ST. U. L. REV. 691, 720 (2001).

And constitutional provisions invite ambiguity, as they cannot “partake of the prolixity of a

legal code.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819). Ultimately, only

an appropriately deferential standard will ensure that “[t]he Elections Clause does not

insulate state legislatures from the ordinary exercise of state judicial review.”1 Moore, 600

U.S. at 22.

1

All this analysis assumes that Moore was rightly decided. But see Moore, 600 U.S. at 55

(Thomas, J., dissenting) (explaining the problems with Moore’s Election Clause analysis).

If the Court is having second thoughts about applying this concededly ambiguous standard,

then it should construe the application as a petition for certiorari and earnestly revisit

Moore head on. The Court shouldn’t warp the present standard of review to upset a state

court decision that bespeaks proper, reasoned decisionmaking in any sense of the term.

9

Applicants never squarely presented this Election Clause argument below, so it

seems an unlikely winner on any eventual petition for writ of certiorari. See Webb v. Webb,

451 U.S. 493, 495 (1981). But in any event, it fails on the merits.

One need only spend a few minutes with the Supreme Court of Virginia’s opinion to

see why Applicants’ argument under Moore can’t succeed. There, the court canvassed the

“detailed process” behind constitutional amendments in Virginia, including the history and

purposes behind this process. See App9a-13a. It explained how Applicants’ reading of the

“intervening election” requirement would undermine the “clear purpose” behind that

process, effectively barring more than a million Virginians who had voted before the

amendment was submitted from weighing in on it. App13a. Applicants’ conception of an

election as a flashpoint in time was also inconsistent with longstanding Virginia

constitutional requirements calling for a long period of notice and deliberations, the Court

said.

App.14a.

Ordinary understandings of “election”—shown in sources such as

dictionaries of the time—would not support Applicants’ view, either. App.15a-16a. And the

court concluded that related but distinct constitutional terms, such as “election,” “election

day,” and “shall be elected,” should carry different constitutional meaning and weight given

the context in which the Constitution uses them. App.17a-21a. Lastly, the opinion directly

engaged with—but found unpersuasive—the dissent’s arguments about how “election”

might be viewed in other contexts, such as state statutes, separate constitutional provisions

governing military services and qualifications for state legislators, and understandings of

“election” when it comes to federal elections. App.23a-26a. While the dissent preferred an

approach of rigid consistency, the majority recognized that context is king.

10

None of this work is so unusual that it suggests the court abdicated its judicial role;

to the contrary, it shows the court was coloring well within the lines. Applicants derisively

characterize the court’s choice to define “election” differently in different parts of the

Constitution or statutes as unjustifiable. Appl.21. Yet this Court, too, has recognized that

the same words can mean different things, even in the same act. See Barber v. Thomas,

560 U.S. 474, 484 (2010); see also Lamar v. United States, 240 U.S. 60, 65 (1916) (“The same

words may have different meanings in different parts of the same act, and of course words

may be used in a statute in a different sense from that in which they are used in the

Constitution.”).

Even more so when “[n]othing in the text of either Clause, the

Constitution's structure, or its history suggests a link between the Clauses.” Noel Canning

v. NLRB, 705 F.3d 490, 504 (D.C. Cir. 2013). “There is, then, no ‘effectively irrebuttable’

presumption that the same defined term in different provisions of the same statute”—or

Constitution—must ‘be interpreted identically.’ Context counts.” Env’t Def. v. Duke

Energy Corp., 549 U.S. 561, 575-76 (2007) (cleaned up); see also Atl. Cleaners & Dyers v.

United States, 286 U.S. 427, 433–34 (1932) (explaining that the same words in the

Constitution often have different meanings depending on their context). And sure enough,

the Virginia court’s concern for context is nothing new, as about every court applies “the

cardinal rule to construe [constitutional] provisions in context.” United States v. Balsys,

524 U.S. 666, 673 (1998). So the Virginia court was merely applying well understood

principles of constitutional construction.

All that’s left, then, is rhetoric and rewarmed arguments that the state court

considered but found unconvincing. For instance, Applicants repeatedly decry the opinion

11

as one driven solely by policy and purpose. Even if that were true—it’s not—it would be no

reason to invoke this Court’s review. See Leah M. Litman & Katherine Shaw, The

“Bounds” of Moore: Pluralism and State Judicial Review, YALE L. J. REV. FORUM, Mar.

29, 2024, at 881, 900 (requiring state courts to focus solely on hyperliteral constructions of

constitutional text would “conflict with Moore’s understanding that the constitutional

system incorporates state approaches to judicial review and legal interpretation that

existed at the Founding”). This Court has considered such things in construing the U.S.

Constitution, for example. See United States v. Classic, 313 U.S. 299, 316 (1941) (“[W]e

cannot rightly prefer, of the possible meanings of its words, that which will defeat rather

than effectuate the Constitutional purpose.”).

And if this case were to become a contest over who showed the most concern for text

alone, then one tell in Applicants’ argument gives the game away: while attacking the

Virginia court’s analysis as beyond the “bounds,” Applicants never engage directly with the

text of Article XII, Section 1, the constitutional provision that actually governs here. A

party claiming that a state court has distorted its own constitution ought to grapple with

the constitutional text, not merely with the court’s reasoning about it.

In short, the Virginia state court did not go so far afield that it produced a federal

constitutional problem.

Quite the opposite: the state court employed sound judicial

reasoning to conclude that an election can start when people start voting. The Court need

not take a closer look at that.2

2

To warrant denying the application, it’s enough to say that Applicants have failed to

present even a colorable basis for this Court’s review. But if the Court were to go further

and look at the equities, Appl.22-24, then those would favor Respondents, too. Applicants

12

CONCLUSION

The Court should deny the emergency application for a stay.3

Respectfully submitted.

JOHN B. MCCUSKEY

Attorney General

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25301

(304) 558-2021

mwilliams@wvago.gov

Counsel for Amicus Curiae State of West Virginia

again offer plenty of rhetoric about creating confusion in elections and overthrowing the

will of the people. Id. But it’s Applicants who want to create confusion shortly before the

midterms; Respondents are asking for the upcoming election to be run like the last one. A

stay would only further compound the confusion, inviting a whiplash situation in which

elections are held under new maps for just one election, only to revert to the old maps for

the next, all at the behest of this Court. “It is one thing for a State on its own to toy with

its election laws close to a State’s elections. But it is quite another thing for a federal court

to swoop in and re-do a State’s election laws in the period close to an election.” Merrill v.

Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurring); see also Purcell v.

Gonzalez, 549 U.S. 1, 4–5 (2006). As for overturning a vote, Applicants asked the state court

to wait for the vote before deciding. App.7a-8a. They can hardly then use that vote to

blockade judicial review. What’s more, the intervening election requirement is meant to

ensure that all voters have a voice; Applicants prefer to disenfranchise more than a million

Virginians while priming the rest with misleading ballot language. And in the end, “[a]

judge does no damage to democratic accountability by issuing a decree that prohibits

violation of a constitutional right” because “[w]hether to obey the Constitution is not a

policy choice in the first place.” ROSS SANDLER & DAVID SCHOENBROD, DEMOCRACY BY

DECREE: WHAT HAPPENS WHEN COURTS RUN GOVERNMENT 204 (2003).

3

Applicants characterize their application as a request for a stay of the Supreme Court of

Virginia’s decision. Appl.24. But the state circuit court entered an injunction that would

continue to operate even if this Court stays the Virginia Supreme Court’s decision. See

App.52a. So the application is more accurately a request to stay the trial court’s decision.

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