Constitutional – Redistricting effort violated Virginia Constitution

Where the legislative process used to advance the successful mid-decade redistricting effort did not comply with the process required by Article XII, Section 1 of the Constitution of Virginia, the resulting new congressional maps were set aside.

Background

On March 6, 2026, the General Assembly of Virginia submitted to Virginia voters a proposed constitutional amendment that authorizes partisan gerrymandering of congressional districts in the Commonwealth. Today this court holds that the legislative process employed to advance this proposal violated Article XII, Section 1 of the Constitution of Virginia.

Analysis

To guard against hasty changes to the Commonwealth’s organic law, Article XII, Section 1 slow-walks the constitutional-amendment process. The General Assembly must twice vote in favor of a proposed amendment at two separate legislative sessions with an intervening election of the House of Delegates.

This gives voters two opportunities — one indirect, the other direct — to voice their views on the proposed amendment. The first is during the intervening-election period between the two legislative sessions. 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.

In this case, voting in the general election for the House of Delegates began on Sept. 19, 2025, and ended on Election Day, Nov. 4, 2025. The General Assembly voted for the first time to propose the constitutional amendment to the electorate on Oct. 31, 2025. By that date, over 1.3 million votes had been cast in the general election, which was approximately 40 percent of the total vote for that election cycle.

The Commonwealth sees nothing wrong with this sequencing because, under its interpretation, the term “general election” in Article XII, Section 1 only means the last day of the election, November 4, otherwise known as “Election Day.” Because Election Day was four days after the October 31 vote to propose the constitutional amendment to Virginia voters, the Commonwealth concludes that there was an intervening election between the 2024 Special Session (which included the first legislative vote for the constitutional amendment) and the later 2026 Regular Session (which included the second legislative vote).

In other words, under the Commonwealth’s view, 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. This view appears to be wholly unprecedented in Virginia’s history.

The Commonwealth’s position finds no support from the text of Article XII, Section 1 or the historical meaning of the term “election.” The court thus holds that the definition of “general election” in Article XII, Section 1 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. The plain and ordinary meaning of the expression matches the historical definition embraced by the courts and legal scholars.

Article XII, Section 1 requires an intervening “general election” after the first legislative vote in favor of a proposed amendment and prior to the second legislative vote before the General Assembly has the constitutional authority to submit the proposal to the voters. In this case, the General Assembly passed the proposed constitutional amendment for the first time well after voters had begun casting ballots during the 2025 general election. 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.

Affirmed.

Dissenting opinion

Powell, C.J., with whom Mann, J., and Fulton, J., join, dissenting:

Today the majority has broadened the meaning of the word “election,” as used in the Virginia Constitution, to include the early voting period. This is in direct conflict with how both Virginia and federal law define an election. Under the facts of this case, I believe the circuit court erred and I respectfully disagree with the majority’s conclusion that the General Assembly did not strictly comply with Virginia’s constitutional requirements. For this reason, I must respectfully dissent.

Scott v. McDougle, Record No. 260127, May 8, 2026 (Kelsey). From the Circuit Court of Tazewell County. VLW 026-6-026. 46 pp.

Full-Text Opinion
VLW 026-6-026