Dem
47
GOP
53
Yesterday, the Virginia Supreme Court invalidated the special election in which Virginia voters approved the legislature's new district maps that would (likely) allow Democrats to gain four more Congressional seats. In a 4-3 decision, the Court found that the state legislators did not follow the process outlined in the state Constitution, which requires two votes in the general assembly with an intervening election between the two votes.
The exact language of the provision, Article XII, Section 1 states:
Any amendment or amendments to this Constitution may be proposed in the Senate or House of Delegates, and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, the name of each member and how he voted to be recorded, and referred to the General Assembly at its first regular session held after the next general election of members of the House of Delegates.
The general assembly first passed the proposed amendment on October 31, 2025, with an election on November 4, 2025. The second approval occurred in January in the 2026 regular session. Voters then approved the measure on April 21.
The issue for the Court was the meaning of the phrase "next general election." Both sides agree that the purpose of this intervening election is to give voters a chance to indirectly respond to an effort to amend the Constitution by voting either for or against the delegates who supported (or opposed) the measure. And then, of course, voters have the chance to vote on the measure directly if it passes in two sessions of the general assembly. Early voting for the 2025 general election began on September 19, so many votes had already been cast by the time of the first vote in the legislature on October 31. The question, then, is whether the legislature followed the requirement to pass the proposal and then pass it again "after the next general election."
The majority held that "general election" includes the period of early voting, so the first vote in the legislature needed to occur before September 19. Because so many voters cast their ballots in the November 2025 election without knowing how their representative voted on the proposal, the Court held that both the letter and spirit of the state Constitution had been violated and the only appropriate remedy was to render the results of the subsequent special election in April 2026 null and void.
The dissent argues that the term "general election" refers to November 4, which is consistent with other state statutes interpreting that phrase. Both the majority opinion and dissent go through lots of linguistic gymnastics to justify their respective interpretations, but what is left unsaid by the majority is why early voters from the November general election matter more than all the voters who cast ballots in the April special election. No one claims that Virginia voters were not given the chance to decide directly whether to adopt the new Congressional maps.
While there is support in the constitutional provision for the majority's position, it's very difficult not to see this decision as yet another partisan ruling by an ideological court. In Virginia, justices are nominated and appointed by the state legislature, such that it's not always clear-cut who is a "Republican justice" and who is a "Democratic justice." That said, three of the judges who voted in the majority (Associate Justices Arthur Kelsey, Stephen McCullough and Teresa Chafin) were selected and appointed when Republicans controlled both chambers of the legislature. The fourth (Associate Justice Wesley Russell Jr.) was selected and appointed by a Republican House of Delegates and a Democratic Senate. Two of the judges in the minority (Chief Justice Cleo Powell and Associate Justice Thomas Mann) were also selected and appointed by a Republican House of Delegates and a Democratic Senate, while Associate Justice Junius P. Fulton III was selected and appointed while the Democrats controlled both chambers. Anyhow, while not as clear as the Supreme Court's current 6-3 breakdown, it's still quite obviously correct to describe the decision as the work of a Republican majority.
And it doesn't exactly inspire confidence that this decision is strictly law-based, given that the opening paragraphs are a lecture to Democrats of the harmful effects of partisan gerrymandering. Kelsey even quotes Associate Justice Elena Kagan's dissent in Rucho v. Common Cause, while ignoring the conservative majority's pronouncement that partisan gerrymandering is not the judiciary's business. Given the top court's encouragement of the practice in the Callais decision and the gleeful alacrity with which Republicans have moved to destroy Black-majority districts, it's the height of hypocrisy to begin the decision with a lecture to Democrats on the distastefulness of the practice.
It seems to us that given the drastic remedy of invalidating an election and disenfranchising all Virginia voters, since the provision of Virginia law is open to both interpretations, the more prudent course would have been to choose the ruling that would be least disruptive to the (small d) democratic process. Of course, the legislature can always try again with an eye toward 2028, but it was an expensive and difficult process the first time around with just a bare majority of voters supporting it. So, there may not be an appetite for round two.
In the short-term, meanwhile, Virginia Democrats have asked the State Supreme Court to stay its ruling while they appeal to the U.S. Supreme Court. They might get the stay, since that is usually pro forma, or they might not, because the matter is very time sensitive. However, do not hold your breath waiting for the U.S. Supreme Court to hear the case, or even to take it. SCOTUS is generally supposed to defer on matters of state law, and this SCOTUS is very happy to do so, at least when a state-level decision is one that the six conservatives agree with, politically. (L & Z)