The Virginia Supreme Court struck down the Commonwealth’s voter-approved redistricting amendment May 8, ending a legal battle in the midst of mid-decade nationwide redistricting efforts. The Cavalier Daily received written statements from two School of Law professors who offered their analysis of the ruling’s legal significance and role in the national context. They wrote that Virginia’s efforts were in line with partisan redistricting pressures nationwide but ultimately came down to a Virginia Supreme Court decision resting on the interpretation of the word “election.”
The amendment — approved by voters in a special election April 21 — would have instated a 10-1 Democrat-favored congressional map, allowing the legislature to bypass the bipartisan Virginia Redistricting Commission and draw a new Democrat-favored congressional map ahead of the 2026 midterm elections.
The legal conflict in Virginia surrounding the amendment began months before the vote, in January, when a Tazewell County Circuit Court judge blocked the amendment from appearing on the April ballot, ruling that the General Assembly had failed to abide by procedural rules. Virginia Democrats appealed, and the Virginia Supreme Court allowed the referendum to proceed as scheduled, but agreed to take up the underlying constitutional question after the April vote.
The Virginia Supreme Court determined in a 4-3 decision May 8 that Virginia’s General Assembly had failed to comply with the Virginia Constitution’s procedural requirements for passing a constitutional amendment, and the 10-1 map was shut down.
Article XII, Section 1 of the Constitution of Virginia establishes that an amendment must pass through both chambers of the General Assembly twice, with an intervening House of Delegates election between the two votes. Importantly, the Virginia Supreme Court concluded that early voting for the "intervening" election was already underway when the General Assembly first approved the amendment Oct. 31. As a result, the Virginia Supreme Court ruled in its May 8 decision that the legislature acted during the election, deeming the amendment procedurally invalid.
In a statement to The Cavalier Daily, Michael Gilbert, School of Law professor and director of the Karsh Center for Law and Democracy, explained that the case ultimately rested on a single word — “election.” The Virginia Supreme Court deemed the word to include the early voting period, during which Virginians had begun voting while the legislature acted. Had the Court interpreted the word “election” to be a single day, the requirement for an intervening House of Delegates election between the legislature’s two sessions to approve the amendment would have been satisfied.
“The case turned on the meaning of the word 'election' in one section of Virginia's constitution,” Gilbert wrote. “It could mean 'election day,' the Tuesday in November when the final votes are cast, or it could mean the entire voting period, which includes early voting.”
Crucially, the Virginia Supreme Court concluded that the Constitution references the latter definition. Therefore, it followed that the state legislature approved the amendment during the election, rather than before it, failing to follow the proper process for a constitutional amendment. Gilbert, an expert in election law, stated that he believed the Virginia Supreme Court erred during its deliberations — he noted he would have expected the Court to side with the voters.
“In my view, both interpretations of the word 'election' are defensible — good reasons support each side,” Gilbert wrote. “When faced with such a close call, I would expect the Court to break the tie by choosing the interpretation that comports with the will of the legislature and the voters.”
For A.E. Dick Howard, School of Law professor emeritus and constitutional law expert, the redistricting battle highlights questions which are at the core of democratic governance. In a statement to The Cavalier Daily, Howard noted that the set of challenges associated with voting and voting power is one that American institutions have been grappling with for decades.
“Among the foundational issues in a constitutional democracy are deciding on the franchise — who gets the vote — and on redistricting — where those votes will be cast,” Howard wrote. “In the 1960s, Congress passed the Voting Rights of 1965, heightening access to the ballot. The [U.S.] Supreme Court handed down the one person, one vote decisions, thus requiring fairness in legislative apportionment.”
According to Howard, the Virginia Supreme Court’s May 8 ruling cannot be understood without reference to its national context. He pointed to the Roberts Court's 2019 decision in Rucho v. Common Cause, which held that federal courts do not have jurisdiction to hear partisan gerrymandering challenges, and therefore cannot step in to determine when gerrymandering has gone too far in terms of districting.
Virginia's redistricting efforts emerged directly from the ensuing national wave of partisan redistricting. After several Republican-controlled legislatures in Texas, Missouri, and North Carolina redrew their congressional maps in favor of their party, Virginia Democrats responded with the constitutional amendment.
Howard further stated that the federal court has “opened the political floodgates” because of the decision that federal courts cannot resolve partisan gerrymandering.
“Whatever the issues under the Virginia Constitution, it is hardly surprising that Virginia Democrats would not stand idly by while Republicans and Democrats in other states were battling over who might control Congress at the midterm elections,” Howard wrote. “Sadly, viewing the national scene, it is hard to imagine the clock being turned back. What the Supreme Court of the United States has unleashed has now become a depressing feature of American politics.”
However, Gilbert mentioned that Virginia’s case is distinctive because Democrats did not act unilaterally. On April 21, Virginia’s voters approved the amendment at the ballot box, and Gilbert explained how this context might complicate the effects of the Virginia Supreme Court’s ruling.
“Some people will perceive this as a victory for the rule of law — the legislature must abide by the constitutionally mandated process,” Gilbert wrote. “Others will perceive this as unreasonable, with the Court voiding a popular [vote] because of a technicality.”
Gilbert suggested that the Virginia Supreme Court’s decision does not mark the end of the road for Virginia Democrats, but it does place a hold on any immediate redistricting efforts.
“The legislature could restart the process from scratch and approve the redistricting amendment in a way that complies with the court’s definition of ‘election’,” Gilbert wrote. “But this would take time. The second required approval couldn’t take place until after the next state election in 2027.”
For now, the existing 6-5 congressional map, drawn in December of 2021, will remain in place through November, when Virginia's 11 congressional seats will be on the ballot in the midterm elections.
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