Koski v. Republican National Committee: Broad Election-Enjoining TRO Treated as Appealable Preliminary Injunction; Scott v. James Prudential Bar on Enjoining Referenda

1. Introduction

In Koski v. Republican National Committee (ORDER) (Va. Mar. 4, 2026), the Supreme Court of Virginia addressed whether it could review—and should stay—a circuit court’s temporary restraining order (“TRO”) that halted all steps toward a statewide referendum on a proposed constitutional amendment. Appellants (Steven Koski, et al.) sought review under Code § 8.01-626 and requested an appellate stay of a TRO entered by the Circuit Court of Tazewell County that enjoined state and local election officials from administering or preparing for the referendum until March 18, 2026.

The central issues were (i) whether the TRO was functionally an appealable preliminary injunction under Virginia law, and (ii) whether longstanding separation-of-powers and equity principles—especially Scott v. James, 114 Va. 297 (1912)—counseled against judicial injunctions that interfere with elections, even where serious legal defects are alleged in the process of submitting a proposed constitutional amendment to voters.

2. Summary of the Opinion

The Court granted the petition for review, held that the circuit court’s TRO had “the characteristics of a preliminary injunction,” and therefore fell within the Court’s interlocutory jurisdiction under Code § 8.01-626. The Court then stayed the TRO, relying on Scott v. James and related equitable principles disfavoring injunctions that stop elections—particularly elections on constitutional amendments—before the electorate votes.

Critically, the Court emphasized that staying the TRO did not signal any view on the merits of pending declaratory judgments in Scott v. McDougle, Record No. 260127 or on additional declaratory-judgment claims asserted in the Koski case. It also granted the Motion to Intervene by Don Scott, Louise Lucas, and Scott Surovell, while denying other requested relief (including consolidation and vacatur) “at this time” pending a final declaratory judgment in the circuit court. The Court directed the circuit court on remand to promptly bring the case to closure and enter final judgment.

3. Analysis

A. Precedents Cited

  • Department of Educ. v. California, 604 U.S. 650 (2025) and Sampson v. Murray, 415 U.S. 61 (1974):

    These federal authorities supplied the analytical bridge for jurisdiction: a TRO that bears “many of the hallmarks of a preliminary injunction” may be treated as an appealable preliminary injunction. The Court imported that functional approach to determine that this TRO’s “scope and impact” made it reviewable under Code § 8.01-626, even though that statute formally applies to preliminary injunctions.

  • Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), with Virginia reaffirmations in Vlaming v. West Point Sch. Bd., 302 Va. 504 (2023) and Howell v. McAuliffe, 292 Va. 320 (2016):

    The Court invoked judicial review’s core axiom—courts say what the law is—but used it to draw a further structural distinction: declaring the law and enforcing it via equitable remedies are different exercises of judicial power. That distinction set up the Court’s conclusion that even robust judicial review does not imply that courts should enjoin elections as a matter of course.

  • Scott v. James, 114 Va. 297 (1912):

    This was the opinion’s controlling Virginia precedent. The Court reiterated Scott’s “well settled principle” that courts of equity “will not, with few exceptions, enjoin the holding of an election, or interfere” with it. The Court highlighted Scott’s specific rationale for constitutional amendments: while a proposed amendment is “in process of being made,” courts should not stop the political act of voting; if the amendment passes, courts may later adjudicate whether constitutional procedures were followed. If it fails, the controversy becomes moot.

    The Court also underscored Scott’s reliance on treatise authority (notably 5 John Norton Pomeroy, A Treatise on Equity Jurisprudence and Halbert E. Paine, A Treatise on the Law of Elections to Public Offices), reflecting a historically rooted, prudential separation-of-powers limitation on election-stopping injunctions.

  • Coleman v. Pross, 219 Va. 143 (1978):

    The Court expressly “leave[s] for another day the precedential impact” of Coleman. It distinguished Coleman as involving an Attorney General mandamus petition pursuant to statutory authority and noted that Coleman “did not apply (or even cite) Scott’s discretionary separation-of-powers principles.” The Court thus confined its present holding to “the sui generis circumstances” before it, signaling that future cases may require reconciling Scott and Coleman.

  • Zwickler v. Koota, 389 U.S. 241 (1967), and Virginia declaratory-judgment authority including Ames Ctr., L.C. v. Soho Arlington, LLC, 301 Va. 246 (2022):

    These authorities supported the Court’s key clarification that Scott limits the timing and availability of election-enjoining injunctions, but does not reduce courts’ obligation to decide declaratory-judgment claims about legal validity. Quoting Zwickler, the Court emphasized a court’s “duty to decide the appropriateness and the merits of the declaratory request irrespective” of whether an injunction should issue.

B. Legal Reasoning

  1. Jurisdiction via functional reclassification of the TRO

    The Court began with a textual limitation: Code § 8.01-626 applies to preliminary injunctions, not TROs. But it then applied a functional test: under Rule 3:26(b), a TRO is meant to be brief and to preserve the status quo only until a preliminary-injunction hearing. When a TRO is expansive enough to resemble a preliminary injunction, it can be treated as such for appellate purposes. Because the circuit court’s order broadly froze the referendum process and carried major public consequences, it had the “hallmarks” of a preliminary injunction.

  2. Stay as a procedural suspension, not a merits adjudication

    Citing W. Hamilton Bryson’s description of a stay, the Court framed its action as suspending enforcement of the TRO rather than validating or invalidating the underlying legal theories. This framing mattered because the Court wanted to avoid any inference that the plaintiffs’ claims lacked “likelihood of success” under Rule 3:26(d)(i).

  3. Scott’s prudential separation-of-powers principle controls the remedy timing

    The Court treated Scott v. James as establishing a strong presumption against injunctions that stop elections—especially on proposed constitutional amendments—while preserving post-election judicial review. The Court characterized this as a prudential and structural restraint, not a denial of judicial power. Put differently: courts can later declare an amendment invalid for procedural defects, but generally should not prevent the people from voting “under the color of law.”

  4. Declaratory judgment remains available even where injunction is disfavored

    The Court drew a doctrinal line between (a) adjudicating legality through declaratory relief and (b) halting an election through equitable coercion. It emphasized that declaratory judgments are “binding adjudications of right” (as discussed in Kent Sinclair’s treatise) and may be entered even when a court should refrain from enjoining the election itself.

  5. Non-merits posture and insistence on finality below

    The Court took pains to say the issues raised—both those already decided in Scott v. McDougle and those newly pled in Koski—were “weighty” and “of grave concern,” but it “offer[s] no opinion on the ultimate resolution.” Still, it ordered the circuit court to move promptly to final judgment, positioning the dispute for ordinary appellate review on a full record rather than emergency election-stopping injunctions.

C. Impact

  • Expanded pathway for appellate oversight of election-related “TROs”

    Trial courts cannot necessarily shield election-halting orders from interlocutory review by labeling them “TROs.” If the practical effect is preliminary-injunction-like, the Supreme Court of Virginia may treat the order as appealable under Code § 8.01-626.

  • Reinforcement of a strong anti-injunction norm in election timing disputes

    By applying Scott v. James to stay an order that froze a constitutional amendment referendum, the Court reaffirmed that the default remedial posture is to allow the vote to proceed and litigate validity through declaratory judgments and post-election review as needed.

  • Incentive to litigate election-process challenges as declaratory judgment actions

    The opinion signals that litigants should expect more receptivity to declaratory adjudication than to pre-election injunctions, particularly where the requested injunction would keep “Virginians from the polls.”

  • Open question regarding Coleman v. Pross

    By reserving Coleman’s precedential scope, the Court leaves space for a different remedial approach when the executive branch invokes statutory authority (e.g., mandamus) to resolve constitutional doubts over submission procedures—potentially a distinct category from private plaintiff injunction suits.

4. Complex Concepts Simplified

  • TRO vs. Preliminary Injunction: A TRO is supposed to be short-lived and maintain the status quo until the court can hold a fuller hearing. A preliminary injunction is typically longer-lasting and entered after more substantive consideration. Here, the TRO was treated like a preliminary injunction because of its practical breadth and consequences.
  • Interlocutory appeal: An appeal taken before a final judgment. Code § 8.01-626 authorizes this in the preliminary-injunction context; the Court held a TRO may qualify when it functions like a preliminary injunction.
  • Prudential (remedial) restraint vs. lack of power: The Court did not say judges lack authority to rule on election legality. It said courts generally should not use injunctions to stop the vote before it happens; instead, courts can rule afterward (or via declaratory judgment without blocking the election).
  • Declaratory judgment: A binding judicial declaration of the parties’ rights or the legality of government action, without necessarily ordering anyone to do (or stop doing) something immediately. The Court emphasized declaratory judgments remain appropriate even where an injunction is not.
  • Mootness: If the voters reject the amendment, many legal challenges may become irrelevant because the amendment never takes effect—an important practical reason, in Scott’s view, to avoid enjoining the vote.

5. Conclusion

Koski strengthens two linked principles in Virginia election litigation. First, a TRO that effectively halts an election process may be treated as an appealable preliminary injunction under Code § 8.01-626. Second, and more substantively, the Court reaffirmed Scott v. James as a prudential separation-of-powers doctrine: courts generally should not enjoin the holding of an election—particularly a referendum on a constitutional amendment—even when serious procedural invalidity is alleged. Instead, Virginia courts retain (and must exercise) the power to adjudicate legality through declaratory judgments and subsequent appellate review, while avoiding pre-election judicial commands that keep citizens from the polls.