The Virginia Supreme Court ruled last week that Virginia’s constitutional amendment process that allows the state legislature to redraw congressional districts for November’s midterm elections is unconstitutional. The ruling effectively invalidated the April election in which more than 3 million Virginians voted and a majority approved the measure.
The amendment would pave the way for the state Legislature to hold the 2026 midterm elections using a gerrymandered U.S. House map in which 10 of the state’s 11 districts favor Democratic candidates. The map replaces the 2021 map drawn by a court-appointed task force, with six seats leaning Democratic, four seats leaning Republican, and one seat in the mix. The high court’s ruling ruled that the Special Masters’ 2021 map will remain valid for the upcoming midterm elections.
The Virginia Supreme Court’s decision comes as states battle for partisan redistricting ahead of the midterm elections. McDougle vs. Scott It drew sharp criticism, with some even suggesting that members of the court should be removed. But the issue before the court was actually a procedural question: whether the Legislature followed Virginia’s strict process for amending the state constitution. The court answered that question in the negative, holding that the state legislature did not follow the process set forth in the state constitution and therefore lacked the authority to redraw congressional districts.
Complex correction process
Virginia’s current redistricting battle stems from a constitutional amendment approved in 2020 that delegates the task of redrawing federal and state legislative districts to an advisory redistricting commission made up of eight state representatives and eight Virginians. The amendment would transfer redistricting authority to the Virginia Supreme Court if the commission could not agree on a map. This impasse occurred in 2021, when the Virginia Supreme Court drew the current map with the help of two special justices.
Because of this constitutional amendment, when unprecedented redistricting battles began in several states last year, the Virginia General Assembly had to seek an amendment to the Virginia Constitution that would give it the power to not only redraw maps on its own with a majority vote of the legislature. The process used to pass the amendment at issue mcdougle.
The procedure for amending the Virginia Constitution is governed by Article XII, Section 1. This provision provides for a four-step process. First, both houses of Congress, the House of Delegates and the Senate, must vote to pass constitutional amendments during Congress. Second, elections for Virginia’s House of Representatives, the House of Delegates, must intervene. Third, both houses of Congress Also Vote to pass the constitutional amendment bill at the next regular session of Congress. Fourth, twice-approved amendments go to voters, who must pass them by popular vote.
Virginia Supreme Court Justice D. Arthur Kelsey said in the majority opinion that this is necessarily an arduous process and that the Constitution should not be amended lightly.
This process gives voters two chances to kill the amendment. First, they can vote to replace the member who originally passed the amendment with a member who does not support the amendment in question. Second, if the amendment reaches a vote, the amendment itself can be rejected.
Virginia’s 2025-26 Redistricting Efforts
In contrast to federal elections, which are held in even-numbered years, Virginia’s state elections are held in odd-numbered years. Therefore, the general election of delegates will be held on November 4, 2025, and early voting began on September 19. During this time, Virginia voters had the opportunity to vote early (or on Election Day) for their preferred candidates for delegates, governor, and other statewide offices.
Since Congress is not in session throughout the year, this period was a special session. The special session was initially limited primarily to deliberating budget proposals, but later lawmakers, along party lines, voted to expand the scope of the session to include constitutional amendments.
Then, on October 29 and 31, 2025, more than a month after early voting began, both chambers of Congress voted in favor of amending the Virginia Constitution for the first time. By this date, 1.3 million votes had already been cast in the House of Representatives election. Four days later, Election Day was November 4, 2025.
On January 14 and 16, 2026, Congress reapproved the amendment. The amendment was then sent to the people of Virginia for a public vote on the issue. A majority of Virginians approved the amendment.
Previous opportunities to consider
Throughout this process, litigation was pending in Virginia courts over whether the Legislature took the proper steps to amend the Virginia Constitution. In March, the dispute reached the Virginia Supreme Court, which ruled that it could not intervene in the process until after the election. This decision, also controversial, is based on a 1912 Virginia Supreme Court case. scott vs jamesheld that courts cannot address procedural issues related to the constitutional amendment process until after a popular vote.
Just one day after the April 21, 2026, election, a lower court ruled that the process was improper and invalidated the amendment. The court explained, among other reasons, that the first Congressional vote on the amendment on October 31, 2025 is outside the scope of the special session. The general election of the House of Delegates did not intervene before the second vote, as required by the state constitution. The proposed amendments were not posted and published in court at least three months before the general election, a statutory requirement. And the language on the ballot was “grossly misleading” and “did not accurately describe the proposed amendment.” The court did not elaborate on why this measure was misleading.
last week’s decision
The Virginia Supreme Court majority addressed one issue on appeal: whether a general election of delegates intervened between Congress’s two votes on the amendment.
The state defended the validity of the procedure, arguing that because the Nov. 4, 2025 election date came four days after the first Congress’s approval, the constitutional requirement for a “general election of representatives” to take place between two Congressional votes was met. The state argued that the term “general election” referred only to Election Day, not the entire voting period.
In a 4-3 decision, the court disagreed, saying the “general election” meant the entire election from Sept. 19 to Nov. 4. The court said Election Day was the very last day of the general election. Citing the more than 100-year history of general elections being held over several days, the majority argued that the correct reading of “general election” requires consideration of historical context and the public’s understanding of the term. According to the majority, the public would define a “general election” to include mass early voting in which more than 1 million Virginians voted. The majority emphasized that this interpretation would preserve Virginia’s “constitutionally protected opportunity for delegates to vote for or against constitutional amendments.” Therefore, according to the majority’s interpretation, Congress failed to vote on the constitutional amendment bill. before Under the state constitution, representative elections will be held in the interim.
Thus, just 16 days after the people of Virginia approved the constitutional amendment by popular vote, the court invalidated it as improperly codified.
Opponents were persuaded by the state’s definition of a “general election,” pointing to Article 2, Section 4 of the Virginia Constitution, which gives the legislature the power to determine when and how elections are held, and which requires delegates to be “elected” on “the Tuesday following the first Monday in November.” Opponents said Congress invoked these powers by defining a “general election” in the statute as “an election held in the Commonwealth.” above The Tuesday following the first Monday in November. ” Opponents also highlighted that the law states that early voting begins “before the election.” Opponents cited other provisions in the state constitution that also say elections “must be held.” be held back Tuesday, it’s not about the election. end on that Tuesday. Any objections would have allowed the state to make the decision and allow Congress to redraw the map.
National gerrymandering
The battle for Virginia is being fought in the context of increasingly intense redistricting wars across the United States.
From 2025 to 2026, a number of states, including California, Florida, Louisiana, Missouri, North Carolina, Tennessee, Texas, Utah, and Virginia, are redrawing U.S. House districts to favor partisanship in the November 2026 general election. These efforts have accelerated since the U.S. Supreme Court ruled last month. louisiana vs curry Louisiana’s congressional map, which includes two majority-black districts, is an unconstitutional racial gerrymander that violates the 14th Amendment. chalice This would allow states to prioritize partisan goals over racial balance when drawing congressional districts, making it difficult for states to challenge the maps as racial gerrymandering if they claimed partisan intentions.
Each of these states has its own process for redistricting. Some states, like Virginia, had to submit redistricting to a popular vote. Californians passed a ballot initiative in November 2025 that temporarily overrode the state’s independent redistricting commission and adopted Democratic-leaning maps drawn by the state Legislature. Other states do not require voters to redistrict. Texas, North Carolina, Utah, Florida, and Tennessee were all able to redistrict their congressional districts without a ballot initiative.
In this context, the Virginia Supreme Court’s decision to invalidate the constitutional amendment was, in part, the result of the state’s redistricting process. Due to the 2020 Redistricting Commission’s constitutional changes, Virginia cannot currently redistrict without passing another constitutional amendment. In attempting to pass that amendment, the Legislature did not properly follow the amendment process set forth in the state constitution, as interpreted by the court.
The Virginia Supreme Court’s decision does not prevent the case from being retried in 2028, subject to proper procedures.
Laura Nyday is an associate in Steptoe’s Washington, DC office where she focuses on pro bono work, including voting rights litigation.
Recommended citation: Laura Niday, Virginia’s Redistricting Efforts and the Painstaking Process of Constitutional AmendmentsSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 15, 2026), https://statecourtreport.org/our-work/analysis-opinion/virginias-redistricting-effort-and-laborious-process-amend-its
