RICHMOND, Va. (WRIC) — A case that appears to be the last chance to force Virginia House of Delegates elections this year is now in the hands of a federal judge.

A lawsuit filed by author Jeff Thomas and later amended to include Loudoun County NAACP president Rev. Michelle C. Thomas and the local chapter’s former president, attorney Phillip Thompson, argues the 2021 Virginia House elections were held under outdated districts and that their votes were diluted as a result.

The Virginia Attorney General’s Office and the plaintiffs who filed the federal lawsuit against state election officials in June have each submitted the required court filings on an expedited schedule ordered by U.S. District Judge David J. Novak, who is now considering whether to grant the state’s bid to dismiss the case.

Similar to a lawsuit dismissed already, the plaintiffs in the case want the U.S. District Court for the Eastern District of Virginia to set one-year terms for the current state delegates that end in January and order special elections this November using the state’s new legislative districts updated with new census data.

The attorney general’s office — under both Democrat Mark Herring and his Republican successor Jason Miyares — has defended Virginia’s elections commissioner and the state board of elections in the cases.

State lawyers filed a motion to have the lawsuit thrown out on July 1. The plaintiffs opposed the motion to dismiss in a July 11 filing that the attorney general’s office responded to four days later.

Why the plaintiffs say the case should move forward: Thomas, Rev. Thomas and Thompson argue that unlike the lawsuit filed by attorney Paul Goldman — which was dismissed for a lack of legal standing — they have presented evidence showing they have been personally impacted by the state’s decision to hold the 2021 elections under old districts that were drawn using 2010 census data.

They say the districts they live in and voted in for last year’s Virginia House elections have population deviations above the 10% required threshold set by the U.S. Supreme Court when compared to the smallest House district.

In their filing opposing the state’s motion to dismiss the case, the plaintiffs claim the court has already ruled on their standing and its jurisdiction over the case and that the attorney general’s office ignored Novak’s instructions by arguing they lacked standing and that the state elections officials are protected from such lawsuits under sovereign immunity.

The plaintiffs also challenged arguments that they waited too long to file the lawsuit, which state lawyers say has stripped the court of its jurisdiction to grant relief in the case.

Novak has been critical of the state’s response to the legal efforts from Goldman and Thomas, placing the blame on the attorney general’s office under Herring for “stall tactics,” and asking Miyares’ office to share why they have “clean hands” in the delay of the case.

The judge also asked Thomas to provide what led him not to file a lawsuit instead of trying to intervene in Goldman’s lawsuit last October and waiting to file a new lawsuit after Goldman’s case was dismissed.

“The facts of Mr. Thomas Jr.’s case have been before the Court for nearly a year,” the plaintiffs wrote in their July 11 filing. “This does not evince somebody ‘sleeping on their rights’ but a citizen trying to get his voting rights back in the face of calculated state government opposition.”

Why state lawyers believe the court should toss the case: The attorney general’s office argues the plaintiffs lack standing to bring the case forward because they did not challenge a new map that would be used in an upcoming election that shows “an ongoing or future injury in fact,” but instead claiming the map used last year was unconstitutional.

In both redistricting cases, state lawyers have said that the 2021 Virginia House elections were constitutional because the state was required to use the “best population data available” and new census data arrived too late to redraw the districts.

“Virginia received the 2020 Census data a mere 23 days before the 2021 general election began and 79 days after the primary election had concluded,” the AG’s office wrote in the July 15 filing. “The ‘best population data available’ were therefore the 2010 Census data because the 2020 Census data were not available in time for the 2021 election.”

Without establishing an ongoing or future injury, the attorney general’s office argues, the plaintiffs lack standing and state election officials are protected from being sued in the case. According to the motion to dismiss, this takes away the court’s jurisdiction to grant the “prospective injunctive relief” the plaintiffs seek.

The attorney general’s office also disputes the assertions that it’s responsible for a delay in the legal effort, arguing in its motion to dismiss and response to the plaintiffs that Thomas did not have to try to intervene in Goldman’s case and could have filed his own lawsuit at any time.

What’s at stake: If the lawsuit survives, the case is expected to be heard on an expedited schedule. The amended lawsuit from Thomas calls for primary elections to be held on or before Sept. 13, 2022, and to hold the state House elections on Nov. 8, 2022, when the congressional midterms will be held.

If the plaintiffs ultimately prevail in court and get through potential appeals, Virginia would have House of Delegates elections three years in a row.

Update: After publication of this story, the 4th U.S. Circuit Court of Appeals upheld the Eastern District of Virginia’s ruling dismissing Goldman’s lawsuit for lack of standing.