The Supreme Court of Virginia struck down a gerrymandering attempt on Friday that would have allowed Democrats to effectively strip representation from millions of Virginians.
In a 4-3 decision, the majority noted that Democrats violated the constitution in the way it shoehorned the referendum in at the last minute, not allowing voters to have a say in whether it was even put on the ballot.
“In this case, the Commonwealth submitted a proposed constitutional amendment to Virginia voters in an unprecedented manner that violated the intervening-election requirement in Article XII, Section 1 of the Constitution of Virginia,” the court wrote. “This violation irreparably undermines the integrity of the resulting referendum vote and renders it null and void. For this reason, the congressional district maps issued by this Court in 2021 pursuant to Article II, Section 6-A of the Constitution of Virginia remain the governing maps for the upcoming 2026 congressional elections.”
The court also acknowledged in the first paragraph that the proposed amendment would have “authorize[d] partisan gerrymandering of congressional districts in the Commonwealth.”
Upholding the current map, that means Virginia’s congressional delegation will likely remain six Democrats and five Republicans, instead of 10 Democrats and one Republican, as the referendum would have allowed. The referendum would have also allowed five out of 11 U.S. Representatives from Virginia to come from one county, Fairfax.
As The Federalist reported, the constitutionality of the referendum came down to procedural requirements about how referendums actually make it onto the ballot for voters to decide. While other lawsuits that were percolating through the court made other procedural arguments, the Virginia Supreme Court said this process was tainted from the very beginning.
Virginia’s constitution requires that a proposed amendment be passed by two separate legislatures, with an intervening election, allowing voters to have a say on the referendum before it even makes it to a vote for the next legislature.
“This gives voters two opportunities — one indirect, the other direct — to voice their views on the proposed amendment,” the court states. “Voters can support or defeat candidates for the House of Delegates who either endorse or oppose the proposed amendment. If the General Assembly votes against it at the next legislative session, the process ends there. If the General Assembly votes in favor of the proposal, voters get a second direct opportunity to vote the proposed amendment up or down at the ballot box. The efficacy of the second popular vote depends in part upon the reliability of the first.”
The “reliability of the first” is where Democrats’ procedural rigging throws out the entire process.
Virginia’s elections last 45 days, ending in “Election Day,” but the Democrats in the 2025 General Assembly session waited until Election Day was four days away to pass the referendum, after more than 1 million votes had been cast.
“The four-day period (which included a weekend) was the ‘intervening’ period during which Virginia voters could find out what the proposed amendment actually said, whether their preferred candidate supported or opposed it, and whether they wanted to use their vote to express a view on the subject,” the court wrote, saying the move was “wholly unprecedented in Virginia’s history” and that of all the proposed amendments adopted under the current procedure, the court found “none in which the General Assembly passed a proposed amendment after voting in the general election had already begun.”
Attorney General Jay Jones’ office argued that the 1.3 million Virginians who cast their ballots in the 42 voting days prior to the General Assembly passing the referendum “squandered that opportunity” to be part of the referendum process, the court wrote, “by accepting the Commonwealth’s invitation to cast their votes” during the early period.
“Under this thesis, early Virginia voters unknowingly forfeited their constitutionally protected opportunity to vote for or against delegates who favor or disfavor amending the Constitution by not anticipating a legislative vote on a constitutional amendment four days before the last day of voting,” the court stated. “To be sure, under the Commonwealth’s logic, the legislative vote could just as well have been one day before.”
The court addressed concerns from Republicans about why the court did not intervene in stopping the election before it began, explaining that it upheld “longstanding precedent” to allow the entire process to move forward before hearing challenges.
However, the court also seemed to call out the Democrats for attempting to use that fact as a cudgel in pressuring the justices to vote in their favor.
“It might be tempting for the Commonwealth to think that the final vote implicitly stacks the deck in its favor — perhaps enough so that the exercise of any judicial review could be viewed as an ultra vires effort to overturn the will of the people. If this supposition were true — that Scott forbids pre-election challenges and that ‘the will of the people’ forbids post-election challenges — then judicial review of allegedly unconstitutional procedures used to adopt a constitutional amendment would not exist in the Commonwealth of Virginia,” the court stated. “On the issues before us in this case, we hold that the ultimate vote margin plays no role in the analytics of our judicial review of the constitutionality of the pre-election constitutional-amendment process. Neither a high margin of success nor a single-digit margin … logically or legally matters.”
Regardless, in response to the opinion, Jones attempted to make that argument, stating, “This decision silences the voices of the millions of Virginians who cast their ballots in every corner of the Commonwealth, and it fuels the growing fears across our nation about the state of our democracy.” He said his office is “evaluating every legal pathway forward to defend the will of the people,” though it is unclear where any appeal can go from here, since the U.S. Supreme Court does not have jurisdiction to hear it.
The opinion spent quite a bit of time defining what an “election” really is, since the Democrats contended that it could only be counted as “Election Day,” in this instance — despite the fact that Democrats are also the ones who instituted the 45-day voting season in the first place.
A “general election,” the court stated, “describes the combined actions of voters casting ballots and officers of election receiving those votes and closing the polls on the last day of the election.”
It is, the court said, the “act of choosing,” not simply the last day of choosing.
