Virginia Supreme Court: Gerrymandering Amendment Void – 2026
The Court Didn't Reject
the Will of the People —
It Protected Their Right to Vote
Critics say the Virginia Supreme Court overturned democracy when it voided the gerrymandering referendum. They have it exactly backwards. Here is what actually happened — and why the ruling was the most pro-voter decision possible.
Virginia's Constitution Has a Built-In Speed Bump
Changing Virginia's Constitution is supposed to be hard. Not impossible — but deliberately slow, with multiple checkpoints that ensure the people have a genuine say at every stage. This framework has existed since 1870, and it's designed around a single insight: voters should be able to evaluate their legislators on any proposed amendment before that amendment ever goes to a referendum.
The mechanism is called the intervening election requirement, found in Article XII, Section 1 of the Virginia Constitution. It works like this:
General Assembly — First Vote
A majority in both chambers proposes the constitutional amendment. This is the first of two required legislative approvals.
A Complete General Election Must Occur
A full election for the House of Delegates must take place — from the first ballot cast to the last vote counted on Election Day. Voters can use this election to reward or vote out the delegates who supported the amendment.
This is the safeguard. Voters get indirect input — by choosing who represents them — before they get direct input in the referendum.
General Assembly — Second Vote
The newly elected (or re-elected) legislature votes again. If it passes a second time, it moves to the people.
Statewide Referendum
Virginians vote directly — yes or no. A majority ratifies the amendment into the Constitution.
Both voter opportunities must be genuine. The indirect one — choosing who votes in Step 2 — and the direct one — the referendum. If either is compromised, the whole process is invalid.
The Timeline That Broke the Rule
In 2025, the General Assembly attempted to pass a constitutional amendment that would redraw Virginia's congressional maps. The proposed change would shift Virginia from its current six-to-five partisan split to an expected ten-to-one advantage for one party. Here is the sequence of events that led the Virginia Supreme Court to invalidate the entire process:
Early Voting Opens
The 2025 House of Delegates general election begins. Virginians start casting ballots — as the Commonwealth invited them to do.
General Assembly Holds Its First Vote
The Assembly proposes the gerrymandering amendment for the first time. By this date, over 1.3 million Virginians — approximately 40% of all ballots — had already voted. The election they were supposed to use as indirect input on the amendment had already been underway for 42 days.
Election Day
The final day of voting in the House of Delegates election — only four days after the first GA vote. The Commonwealth would later argue this was the "election" that counted.
Second GA Vote & New Map Drawn
The new legislature approves the amendment a second time. A congressional map is drawn that would produce an expected 10-to-1 partisan split.
Statewide Referendum
Voters are asked to approve the amendment. The result: 1,604,276 Yes vs. 1,499,393 No.
Supreme Court of Virginia Rules
The Court finds the intervening election requirement was violated. The referendum vote is declared null and void.
1.3 Million Voters Lost Their Constitutional Right Before They Knew It Was Gone
The entire purpose of requiring an intervening election is to give voters the chance to evaluate their representatives on the amendment before the second legislative vote happens. But that purpose is only meaningful if voters know about the amendment when they cast their ballots.
On September 19, 2025, when early voting opened, the gerrymandering amendment did not exist. The General Assembly had not yet proposed it. Virginians who voted that day, or on any of the next 41 days, had no way to factor the amendment into their vote — because there was nothing to factor.
Those 1.3 million early voters were unknowingly deprived of their constitutionally protected opportunity to use their vote as indirect input on the amendment. They did nothing wrong — they responded to Virginia's own invitation to vote early. But the General Assembly's timing stripped their vote of its constitutional function.
The Virginia Supreme Court recognized this directly. The majority emphasized that the intervening election requirement is not a technicality — it is a substantive protection for voters. When that protection is compromised for 40% of the electorate before the amendment even exists, the process cannot be considered valid.
"No tenet of free government is more fundamental than fairness in voting and representation."
— Justice D. Arthur Kelsey, writing for the majorityWhat "General Election" Means — The State's Argument and Why It Failed
The Commonwealth mounted a straightforward defense: the phrase "general election" in Article XII means Election Day — November 4. Since the General Assembly held its first vote on October 31, four days before Election Day, the argument went, there was a general election that intervened. The Constitution was satisfied.
"General election" = Election Day (Nov. 4)
- The GA voted October 31 — before Election Day.
- Therefore, there was an intervening election.
- Early votes are part of the same Election Day process.
Under this logic, the GA could vote the day before Election Day and be constitutionally compliant.
"General election" = the entire election process
- An "election" is the combined process of voters casting ballots and officials receiving them.
- Voting began September 19. The election started then.
- The GA voted on October 31 — 42 days into the election.
There was no intervening election. The first GA vote occurred during the election it was supposed to precede.
The Court traced the meaning of "election" to colonial Virginia, when sheriffs traveled from plantation to plantation collecting votes over multiple days. The word has never meant a single day — it has always described the complete process of choosing. Of 63 constitutional amendments proposed since Virginia's 1971 Constitution, not one had ever been advanced after voting in the relevant election had already begun. This was the first.
The Court's Decision: Null and Void
The majority stressed two things that critics have largely ignored. First, the vote margin is irrelevant. Whether the amendment passed by 104,000 votes or 1,000,000 votes makes no constitutional difference. The validity of a constitutional process does not depend on whether the outcome is popular.
Second, the Court noted that the Commonwealth had successfully blocked judicial review before the referendum by arguing courts must wait until after the vote. Having used that argument to force a referendum on a constitutionally flawed process, the Commonwealth could not then argue that the yes-vote insulated the result from review.
The three dissenting justices would have found the process valid under a narrower reading of "general election." Their view did not prevail.
The Court Protected Voters. The Violation Disenfranchised Them.
The loudest criticism of the ruling has been this: "The Court overturned the will of the people. Voters said yes; the judges said no." It is a compelling framing — and it is precisely backwards.
"The Court rejected the will of the people by voiding a referendum that passed."
The Constitution gives Virginians two distinct roles in the amendment process: an indirect role through the intervening election, and a direct role in the referendum. The General Assembly's timing eliminated the first role for 1.3 million voters before it was even possible to exercise it. The Court didn't cancel a valid process — it required that the process actually be valid.
Consider the logic from the other direction: if the Court had upheld the referendum, it would have blessed a process that permanently stripped 1.3 million Virginians of their constitutionally guaranteed opportunity for indirect input. Those voters trusted Virginia's invitation to vote early. They cast their ballots in good faith. The General Assembly's October 31 vote made that trust retroactively meaningless — and a court that approved it would have permitted the legislature to manipulate the amendment process by simply timing its first vote after early voting begins.
"You cannot violate the Constitution to change the Constitution."
— Sen. Ryan McDougle (R), winning appellee in Scott v. McDougleThe Practical Outcome and the Road Forward
Virginia's current congressional maps — graded "A" by Princeton's Gerrymandering Project — remain governing law for 2026 elections and beyond. The current split is six to five.
The proposed new congressional map — which would have produced an expected ten-to-one partisan advantage — does not take effect. The referendum vote is null and void.
Going forward, the General Assembly must complete its first vote on any proposed amendment before the first early ballot is cast in the relevant election. No exceptions.
The ruling does not prevent Virginia from revisiting redistricting through a constitutional amendment. The General Assembly may propose amendments on any subject, including congressional maps. What it may not do is compress the timeline so that the process begins after voting has already started.
Virginia's "Slow Step" process exists because the people who wrote the Constitution understood that the majority of the moment cannot be trusted to rewrite the rules without checks. The intervening election is one of those checks. The Virginia Supreme Court's ruling in Scott v. McDougle ensures that check remains meaningful — and that early voters in every future election retain the same constitutional rights as those who vote on Election Day.
Primary Source: Supreme Court of Virginia, Scott v. McDougle, Op. No. 1260127 (May 8, 2026) — vacourts.gov
Constitutional Text: Virginia Constitution, Article XII, Section 1 — Amendment Procedure
Author: Thomas H. Roberts & Associates, PC · Richmond, Virginia · robertslaw.org
This article is published for informational purposes only and does not constitute legal advice. Laws change; consult an attorney for advice specific to your situation.
