The Supreme Court of Virginia decided a very important matter in Koski v. RNC, et. al…by unpublished order. The Order feels like an attempt not to decide anything controversial. It reads “nothing to see here.” But this election and redistricting case tells us a fair amount.

First, the SCV addresses appellate jurisdiction and it makes clear that Va. Code Section 8.01-626 applies to preliminary injunctions, not TROs. But the statute applies to this TRO because it “has the characteristics” of a preliminary injunction.  Did the SCV offer us explanation and examples to help courts determine when a TRO could similarly fall under the gambit of 8.01-626? Nope. Clear as mud, right?

So what did the SCV do here ultimately? Not decide the merits of these larger questions. Instead, it is staying the TRO until further order of the Court as “keeping Virginians from the polls is not the proper way to make this decision.” And, as the Court notes, “this is not an ordinary case.” 

Why did the Court agree to pause the Tazewell Circuit Court judge’s TRO of the upcoming election? The SCV relies on an old case (we love old cases in Virginia): Scott v. James, 114 Va. 297 (1912). It holds that, as a policy matter, courts should refrain from enjoining elections and instead address legal challenges afterward. Fair enough. But how does this principle square with Coleman v. Pross, a 1978 case involving a mandamus petition regarding a proposed constitutional amendment? We don’t know because the Court decided it was unnecessary to address it at this juncture.

When will the Supreme Court review the merits? Maybe never if voters reject the proposed amendments (I can almost envision some of the justices’ fingers being crossed as we speak). But as the SCV kicks the can down the road, the Court acknowledges that, if it needs to, it will reluctantly review the “weighty assertions of invalidity” later.

Isn’t it interesting that this consequential case came out as an unpublished order? Is there really nothing to see here? Or just nothing to see here…yet?