Commentary: Lessons from Virginia’s Redistricting Wars – Supreme Court Nullification and Options for November

More than 1.6 million Virginians voted to amend the Virginia Constitution and temporarily redraw congressional districts ahead of this November’s midterm elections. Supporters hoped the measure would counter efforts in Texas and other Republican-controlled states to engineer partisan advantages through mid-cycle redistricting.

On May 8, the Virginia Supreme Court, in a 4-3 decision, nullified the referendum. On May 15, the U.S. Supreme Court declined Democratic lawmakers’ request to intervene, effectively killing the amendment.

US Supreme Court decision ends Virginia’s redistricting fight, reshapes 2026 races

Those who respect the rule of law must recognize the court’s authority. But accepting a decision does not require embracing its reasoning — or ignoring its consequences.

What lessons should Virginians draw from this episode?

Remember how we got here

Virginia lawmakers did not act in a vacuum. Midcycle redistricting was once considered outside the norm in American politics. That changed when President Donald Trump and Republican leaders in states such as Texas decided to abandon yet another democratic guardrail in pursuit of partisan advantage. Virginia Democrats felt responsible for leveling the national playing field.

The failure of Virginia’s amendment will not deter Republican-controlled states from continuing their efforts. Florida and several others have already adopted new maps or are moving toward doing so.

The Virginia Supreme Court is more political than many assume

Supreme Court of Virginia strikes down redistricting amendment, keeps current maps in place

Virginia is one of only two states (the other is South Carolina) where Supreme Court judges are selected by the legislature. Advocates of this system argue that it shields judges from the pressures of campaigning to gain a seat or retain one, a dynamic that shapes judicial politics elsewhere.

This arrangement purportedly allows them to “follow the law” and avoid political controversy, a pledge that I heard countless times from applicants for judicial positions in the commonwealth.

For decades, Virginia’s Supreme Court largely maintained that reputation. One major exception came in 2016, when the Court decided that Democratic then-Gov. Terry McAuliffe, notwithstanding Article V, Section 12 of our Constitution, exceeded his authority by restoring voting rights, en masse, to more than 200,000 Virginians who had completed felony sentences. McAuliffe ultimately restored those rights individually, one signature at a time.

With this redistricting ruling, however, perceptions of the court are changing.

Today’s Court is arguably more conservative than the one that decided the McAuliffe case. Of the four justices who voted to strike down the referendum, three — Arthur Kelsey, Stephen McCullough, and Teresa Chafin — were chosen when Republicans controlled both chambers of the General Assembly.

Public records show that all four either voted exclusively in GOP primaries in the last 15 years or have given money to Republicans before becoming judges. McCullough is a particularly interesting case, having been appointed after GOP lawmakers denied the seat to the well-respected Hon. Jane Roush,  mainly because she was supported by McAuliffe.

Unless they retire, several of these judges will soon face reappointment by the General Assembly.  Legislators have not rejected a justice seeking reappointment since 1895, but we are living in a different political world.

Virginia is different from most red states — and from California

In many Republican-controlled states, mid-cycle redistricting requires only legislative approval and a governor’s signature. Voters have no direct say.

Like California, changes in Virginia’s redistricting rules require a constitutional amendment approved by the electorate. But Virginia’s process is more challenging.

California lawmakers need only pass a measure once before placing it on the ballot for a popular vote. Virginia requires passage in two successive legislative sessions separated by an intervening election. Only then can voters weigh in, and if they approve, the measure is ratified and becomes part of the Virginia Constitution.

Timing matters

While any decision by the court was likely to be criticized, this one reeks of politics, both in its timing and result.

The Supreme Court of Virginia invalidated the referendum by finding that the General Assembly failed to pass the amendment before an intervening election, not early enough to satisfy constitutional requirements.

Its decision turned on the meaning of the word “election,” a term not explicitly defined in the Virginia Constitution. The one-vote majority concluded that the intervening election had effectively begun once early voting commenced, days before the Assembly acted, thereby invalidating the amendment process.

The court’s ruling — issued weeks after Virginians had already voted — has fueled concerns that the court was improvising the law to obtain its desired result, the defeat of the measure.

The court knew the arguments about  the referendum process as early as March 2026. Opponents argued from the outset that the intervening election had already “started.” Proponents disagreed, citing Article IV, Section 3 of the Virginia Constitution, which states that elections for the House of Delegates occur on “the Tuesday succeeding the first Monday in November.”

Nothing materially changed between the March arguments and the April 21 — except that Virginians spent nearly $100 million on a statewide referendum in which roughly 3.1 million citizens participated. The court’s opinion asserted that the judges considered “the process, not the outcome.” But if the issue was procedural all along, why not rule earlier, and save everyone considerable resources?

The 4-3 majority found its answer in a century-old case, Scott v. James, arguing that its decision must await “the completion of the proceedings,” that is, the vote. But if this were truly the case, the court should have dismissed the initial petition opposing the referendum as premature, as it was filed before the measure was placed on the ballot.

Alternatively, since the constitutional infirmity was with the first General Assembly vote, the court could have ruled that the defect prevents the measure from even being considered.

Finally, Scott v. James was decided in 1912, 60 years prior to the enactment of our 1971 state constitution, and decades before the commonwealth enacted statutes to modernize its election process.

Under our law, an election is not finalized until the State Board of Elections “certifies” the results, an event that occurs weeks after election day. When the state supreme court issued its decision, the referendum vote had not been “certified.” In fact, the judges issued an order preventing it. Its  decision, then,  runs contrary to  its own logic that it should wait for “the completion of the proceedings.”

The court’s delay and opinion fuel speculation that it avoided an earlier ruling in hopes that the referendum would fail, and the justices would never need to decide the issue. That perception, fair or not, deepens public cynicism about judicial neutrality at a time when the legitimacy of courts is under constant attack.

Democrats may still gain congressional seats

Virginia voters dislike hyper-partisan redistricting; the referendum was passed to counter it.  And many continue to question Trump’s fitness for office. Will those sentiments translate into Democratic victories this November?

Even before the proposed maps were introduced, Democrats believed they had realistic opportunities to defeat Republican incumbents in the 1st and 2nd congressional districts, both carried by Gov. Abigail Spanberger in 2025. They also saw an opening in the 5th District, where former Congressman Tom Perriello is attempting a political comeback.

The collapse of the amendment may make those races more difficult. But elections are still decided at the ballot box. And ultimately, the most effective response to partisan manipulation remains free and fair elections.

November will reveal whether Virginians — and Americans more broadly — are prepared to restore meaningful checks and balances to a political system increasingly dominated by one man: Donald Trump.

by David J. Toscano, Virginia Mercury

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