On Friday, May 8, the Virginia Supreme Court struck down a congressional district map that was approved by 1.6 million Virginia voters just last month. Voters amended the state constitution in April and authorized the state legislature to adopt a new district map, which was expected to give Democrats 10 of the state’s 11 seats in the U.S. House of Representatives. But in Scott v. McDougle, a four-justice majority of the Virginia high court ruled that the amendment process was unconstitutional, rendering the voter-approved map null and void.
The Virginia Constitution requires the General Assembly to pass a constitutional amendment twice before it goes to the voters for ratification—if the Assembly passes an amendment during one legislative session, it must then do so again “at its first regular session held after the next general election.” Justice D. Arthur Kelsey, a conservative who took office in 2015, explained in the majority opinion that this requirement gives voters two opportunities to voice their views on a proposed amendment: first, when they vote in the general election for or against candidates who support the amendment, and second, when they vote for or against the amendment itself.
Here, the Assembly first passed the constitutional amendment authorizing the legislature to redistrict on October 31, 2025. Election Day was on November 4, 2025. And then, the Assembly passed the amendment for a second time during the 2026 regular session that began in January. Finally, the Assembly submitted the proposed amendment to the voters, who ratified the amendment in April.
The problem with this process, according to Kelsey, is that early voting for the 2025 election started on September 19. Thus, the high court held that Virginia lawmakers violated the state constitution’s intervening election requirement, because they first passed the amendment “well after voters had begun casting ballots during the 2025 general election.”
Kelsey noted that “over 1.3 million votes had been cast” by the time the legislature initially approved the amendment in October, reflecting “approximately 40% of the total vote for that election cycle.” And he chastised the state for depriving Virginia voters of “their constitutionally protected opportunity” to support or oppose lawmakers based on their stance on amending the constitution, since the electorate was “not anticipating a legislative vote on a constitutional amendment four days before the last day of voting.”
As a reminder, voters just did affirm their support of the constitutional amendment. The Virginia Department of Elections reported on April 30 that 1,604,276 Virginians voted “yes,” while 1,499,393 Virginians voted “no.” A normal person would take that to mean that the ayes won with roughly 51.7 percent of the vote. (Kelsey takes a more interesting approach to math, asserting that “the majority will of the people was secured by ‘yes’ voters representing 1.69% of the total votes cast.”) Nevertheless, Kelsey concluded that “the efficacy of the second popular vote depends in part upon the reliability of the first,” and that the Assembly violated the state constitution by proposing the constitutional amendment in an “unprecedented manner.”
Scott v. McDougle essentially claims to protect the political participation of the Virginia electorate by nullifying the choice of the Virginia electorate. And it does so in the midst of a nationwide effort to curb the political participation of people of color for the benefit of the Republican Party. In the midst of President Donald Trump’s ongoing redistricting war, the Supreme Court poured fuel on the fire last week by killing the Voting Rights Act, empowering red states to aggressively racial gerrymander for partisan ends. Already, Tennessee Republicans have passed a map designed to eliminate the last remaining stronghold of Black Democrats in the state.
Virginia’s newly-drawn district map could have netted Democrats four additional seats in Congress, and thus mitigated some of the effects of Republicans’ Supreme Court-endorsed gerrymandering spree. By striking the Virginia map down—in the name of democracy, no less—the Virginia Supreme Court has made the current antidemocratic hellscape even more bizarre. Apparently, legislatures can freely impose racist redistricting maps on the public, but the public is not free to choose fair maps for itself.
Virginia Democratic Senator Tim Kaine highlighted this absurdity in a statement, observing that Virginia actually “let the people decide for themselves in a free and fair election” while Republican-led states “have redrawn their maps through backroom deals.” Virginia Attorney General Jay Jones similarly remarked, in a press release, that the court’s ruling “follows a dangerous trend of tilting power away from the people” and contributes to “the growing fears across our nation about the state of our democracy.”
Jones maintains that the amendment process was constitutional, and says his team is “evaluating every legal pathway forward to defend the will of the people and protect the integrity of Virginia’s elections.” But one thing is already clear. The Virginia Supreme Court’s decision purporting to override an election is not just a blow to Democrats. It is a blow to democracy.
