SCOVA Overturns the Virginia Gerrymander

It shouldn’t be too surprising that the Virginia Supreme Court invalidated the state’s travesty of a gerrymander. Attorneys apparently warned that the process by which the Virginia General Assembly developed a constitutional amendment to enable the gerrymander posed legal risks. Even as the Supreme Court initially declined to stop an April 21 referendum on the proposed amendment it acknowledged that the challengers presented “weighty assertions of invalidity against the process” that “are of grave concern to the Court.”  

The Court’s eventual 4-3 decision held that the General Assembly violated the Virginia Constitution’s multi-step process for enacting constitutional amendments. The Constitution requires the General Assembly to pass proposed amendments in two consecutive legislative sessions with an intervening election. The intervening election gives citizens an opportunity to factor their views of the amendment into their votes for legislators who will act on it for the second and final time. The last step in the process is a referendum on the proposed amendment.

In this case, the first General Assembly session passed the gerrymandering amendment on October 31, 2025. Election day for the next session was November 4, 2025, but early voting for that session started on September 19. Thus, the “intervening” election was well underway before the first passage of the proposed amendment took place; about 40 percent of the electorate had already voted by October 31. The Court held that this sequence of events failed to comply with the constitutional framework. It rejected the state’s argument, embraced by the dissent, that the term “election” as used in the constitutional provision governing amendments referred only to the single election day of November 4.

While the issue is technical and perhaps reasonably debatable, the Court’s conclusion seems consistent with the constitutional text and structure and certainly aligns better with its underlying purpose. Notably, because the Court held that the process was unconstitutional, it declined to address several statutory challenges to the proposed amendment that had also been raised. One of these was that the referendum ballot description of the amendment’s purpose “to restore fairness in the upcoming elections” was misleading. Clearly, it was not just misleading but patently false.

While Virginia Democrats of course expressed disappointment at the decision, few had much to say about its substantive legal merits. Some chose to attack the Court’s integrity. Virginia Attorney General Jay Jones described the decision as politically motivated and accused the Court of elevating “politics over the rule of law.” He appealed the decision to the U.S. Supreme Court although the case presents no apparent federal question.

Congressman Don Beyer was either uninformed or disingenuous in condemning the Court’s “indefensible decision to release [the decision] after the referendum was held.” In fact, Virginia lawyers defending the amendment argued that the Court lacked authority to enjoin the referendum and could rule on the amendment’s legality only after the referendum was held. Reportedly a few Democrats are exploring a wild scheme to undo the decision by replacing the entire Virginia Supreme Court.

In the final analysis, Virginia legislators have only themselves to blame for the outcome. They cut corners in rushing to push through the proposed amendment with little regard for the legal details and paid the price for it. So did supporters of the amendment, who reportedly spent more than $60 million on it mainly from dark money sources.

Moving beyond the decision itself, what are its consequences?

First and foremost, Virginia will keep its current eminently fair congressional district map—at least for now.^[1]One interesting side note is that this map was actually put in place by none other than the Virginia Supreme Court after the state’s bipartisan commission failed to reach an agreement. However, the General Assembly may well take another shot at bypassing the state’s constitutionally mandated bipartisan redistricting process given national gerrymandering trends. (See below.) If so, presumably it will adhere more scrupulously to the constitutional and statutory requirements next time.

The political impact is uncertain. Democrats won’t be favored to gain the four House seats they hoped to flip in 2026 by their gerrymander. However, prognosticators think they may still pick up one or more of these seats fair and square if 2026 proves to be as strong a year for Democrats as many predict.

Looking beyond Virginia, the decision is obviously a negative in terms of Democratic hopes to gain control of the House in the 2026 elections, but it’s not likely to be a major factor. Its impact will probably be eclipsed by the fallout from the U.S. Supreme Court’s also very recent Voting Rights Act decision in Louisiana v. Callais. This decision has already unleashed a new wave of gerrymandering potentially more significant than the initial wave Trump launched last year that led to the Virginia gerrymander. (See here.)

Both waves are bad news for our politics. Until recently the grossly anti-democratic practice of gerrymandering seemed to be on the wane. Redistricting typically occurred only once every decade as required by the decennial census; a number of states adopted nonpartisan or bipartisan redistricting processes like Virginia’s; and state courts occasionally overturned partisan gerrymanders. However, we are now entering what has been described as an “era of perpetual redistricting” in which politicians of both parties engage in partisan gerrymandering whenever and wherever they can as they accelerate their race to the bottom.

How it all ends, if it ever does, remains to be seen but the consequences for the overall health of our political system are grim. Most if not all independent redistricting systems are likely to fall victim to the politicians at some point. And, of course, tens of millions of Americans of all races, backgrounds, and political leanings will see their constitutional voting rights diminished.  

Much of this would have been avoided if the Supreme Court hadn’t shirked its responsibilities in its unfortunate 2019 Rucho v. Common Cause decision, which foreclosed federal judicial review of partisan gerrymanders no matter how blatant or extreme.