proper procedure for amending the constitution

At the core of a new Bedford County-based lawsuit challenging Virginia’s pending reproductive rights amendment is an allegation that House of Delegates Clerk Paul Nardo failed to send copies of the amendment to circuit court clerks around the state, as required by law. However, a bill Gov. Abigail Spanberger signed last month retroactively removed that part of state code.

“Passing a post-facto law, I think, is wrong on its face,” House Minority Leader Terry Kilgore, R-Scott, said when the legislature passed House Bill 1384 in late January.

Bedford County supervisor files suit challenging reproductive rights constitutional amendment

That after-the-fact law will be tested in the Bedford case and could have implications for three other constitutional amendments voters are supposed to weigh in on this year. The amendments seek to restore voting rights to ex-felons who have completed their sentences, remove a defunct ban on same-sex marriage from the constitution and  allow a mid-decade redistricting of the state’s congressional maps.  

The lawsuit, lodged by Bedford County supervisor Charla Bansley, states that Bedford County, Campbell County and the city of Lynchburg circuit court clerks didn’t receive a copy of the amendment for public posting, which is mandatory under state code. 

Neither Bedford County circuit court clerk Judy Reynolds nor Virginia House of Delegates clerk Paul Nardo can speak about details of the lawsuit since it names them as defendants. Court clerks in Lynchburg and Campbell confirmed Friday that they had not received notice of the amendments. 

But that’s because, under the new measure passed by lawmakers, Nardo wasn’t required to send them anything at all. 

Under the previous code, Nardo would have sent the materials to Virginia’s 133 clerks around the state. They would have had to print and post them in their courthouses at least three months prior to the next House of Delegates election.

This means the amendments should have been sent prior to last November’s House elections. Three of the amendments passed early last year and the fourth one passed weeks prior to the 2025 House elections.

The newly updated code undid that, a move that experts say isn’t unprecedented.

“Courts do allow laws to take effect retroactively. They just, you know, they sort of balance the damage done by retroactive laws,” said Randolph-Macon College political science professor Rich Meagher. 

In this case, the change is an “administrative” one, he added. 

While he called Kilgore’s opposition to it “principled” as “a timing thing,” Meagher said other arguments would suggest the three-month posting rule is outdated, given how modern technology enhances information and news access.

The previous provision in state code contained an error, Del. Marcus Simon, D-Fairfax, said. 

He said a 1971 update to the state Constitution tweaked how the constitution is amended by ensuring that referendums aren’t held until at least 90 days after amendments pass the legislature, rather than requiring a posting of the amendments 90 days prior to a House of Delegates election. 

“It was really a holdover,” Simon said. “It doesn’t fit the constitutional framework that we adopted in 1971.” 

An argument of amendments

At issue in the Bedford case is a proposal to enshrine reproductive rights — ranging from contraception and fertility treatments to abortion access — into the state’s constitution.

It first passed the state legislature in early 2025, along with two other amendments to protect same-sex marriages and to restore voting rights to people with felony convictions who have completed their sentences. All three measures passed again this year — part of the process to end up on voters’ ballots for final approval or rejection. 

A fourth amendment emerged in October of last year to allow a mid-decade redistricting of Virginia’s congressional maps. The controversial proposal was spurred after President Donald Trump implored GOP states to redraw their maps to fortify their majorities, and Democratic-leaning states like Virginia have since followed suit. 

As constitutional amendments must pass two years in a row with a House of Delegates election in between, the redistricting amendment’s shorter timeline still followed that pattern, as early voting began Friday ahead of the April 21 referendum. 

While the marriage equality and voting rights amendments advanced with bipartisan support, the reproductive rights and redistricting amendments have only advanced because of Democratic majorities. 

The amendments are rooted in state policy but are also a response to national issues. 

Virginia is the least-restrictive Southern state with it comes to abortion access, after the U.S. Supreme Court overturned federal protections in 2022. Justice Clarence Thomas has expressed interest in overturning gay marriage protections, which would trigger Virginia’s existing constitutional ban if not removed. And the redistricting amendment is a response to Trump’s instructions to other states and GOP gerrymandering elsewhere.

Though the Bedford suit only focuses on the reproductive rights proposal, if a court finds in favor of Bansley and deems the proposal invalid the other amendments ostensibly could meet the same fate. 

In opposing the advancement of the redistricting amendment and the repeal of state code with the three-months provision on Jan. 23, Del. Israel O’Quinn, R-Bristol, suggested Virginia should not “be reacting to every single thing that comes out of Washington, D.C.” and added that “the real lesson here is what gives today might take away from tomorrow.”

The redistricting amendment is the center of ongoing litigation, and Virginia’s supreme court has twice given clearance for the amendment to proceed, undoing a Tazewell court’s order that temporarily paused preparations for the referendum. Early voting started Friday; the referendum will be held April 21.