Everyone expected a post-Rucho landscape where partisan gerrymandering, while criticized, was largely insulated from federal review if states could offer a vaguely political justification. That was the prevailing narrative following the Supreme Court’s 2019 decision. Then came Virginia. In a stunning reversal that rewrites the playbook on election challenges, the Virginia Supreme Court has overturned a statewide election approving new redistricting maps, arguing the amendment enabling those maps was never properly placed on the ballot. It’s a move that feels less like judicial review and more like judicial fiat, especially given the timing and the court’s reasoning.
The Shadow of SCOTUS
Just days after the U.S. Supreme Court declared in Rucho v. Common Cause and subsequently Allen v. Milligan that federal courts shouldn’t intervene in partisan gerrymandering cases absent racial discrimination, Virginia decided to take matters into its own hands. The irony? They’re doing it by wielding the state constitution, effectively sidestepping the federal limitations. This isn’t about federalism; it’s about finding a loophole. While states like Tennessee, Alabama, and South Carolina are reportedly redrawing maps behind closed doors to diminish Black voters’ representation, Virginia’s approach is a theatrical spectacle. They presented maps to the electorate, the electorate approved them, and then the state’s highest court swooped in to annul the entire process. One can’t help but note the historical context; Virginia’s rich — and often grim — past with racial dynamics makes such decisions particularly charged.
A Court Reversing Itself
Reading the majority opinion is, frankly, an exercise in appreciating the U.S. Supreme Court’s — and I don’t say this lightly — strategic use of its shadow docket. The justifications offered feel reverse-engineered, as if the political objective dictated the outcome. It’s an almost embarrassing display of contortion. The opinion, penned by Justice D. Arthur Kelsey, pointedly omits any mention of the U.S. Supreme Court’s ruling in Callais v. Alabama, which reinforced the Rucho precedent. This absence is glaring. One wonders if the legal research was outsourced to a particularly outdated AI, or if the deliberate omission is a rhetorical device designed to distance the court from unfavorable federal law.
“From Madison’s era to the present, political parties of every stripe have offered if-by-whiskey arguments supporting partisan gerrymandering. Since that time until today, these arguments have been criticized by thoughtful jurists and legal scholars.”
Justice Kagan, in her dissent in Rucho, powerfully articulated how partisan gerrymandering strips citizens of fundamental rights. Her words, though a dissent, resonate. But the majority here seems to be playing a different game entirely, pivoting away from federal caselaw toward the state constitution as a shield. It’s an understandable strategy, if not a transparent one, to get as far from SCOTUS’s current stance on partisan gerrymandering as possible.
The Constitutional Quibble
The core of the Virginia Supreme Court’s decision hinges on a procedural technicality: the timing of the amendment vote relative to the general election. Article XII, Section 1 of the Virginia Constitution outlines a specific, two-step process for ballot amendments. The idea is to ensure a proposed amendment is considered by two different legislative sessions, demonstrating sustained legislative will before it goes to the public. The amendment in question was proposed by the 2025 legislature and then voted on again by the subsequent 2026 legislature before appearing on the ballot.
But here’s where the court seems to bend reality: they argue that because the initial legislative vote to propose the amendment occurred on October 31, 2025, after early voting had already begun (and approximately 40% of the total votes had been cast), the process was fatally flawed. This argument flies in the face of practicality and, frankly, the U.S. Supreme Court’s own recent willingness to redraw maps mid-election cycle. The crucial point is that the second legislative session, the one that truly ratified the amendment for ballot consideration, met and voted after the initial proposal. To invalidate the entire election based on the timing of the initial legislative step, especially when the amendment successfully navigated the constitutionally mandated second legislative hurdle, feels like a bad-faith interpretation. It’s an “Opposite Day” ruling embraced by partisans seeking a specific outcome.
My Take: A Dangerous Precedent
This Virginia decision is more than just a local election controversy; it’s a canary in the coal mine for election integrity. While the U.S. Supreme Court has largely punted on partisan gerrymandering, state courts can and do act as a check. However, when state courts appear to be manufacturing procedural justifications to overturn election results that align with specific political outcomes, it erodes public trust in the judicial system itself. The court’s insistence on a hyper-technical reading of the amendment process, conveniently ignoring the spirit and the subsequent legislative actions, sets a dangerous precedent. It suggests that elections, even those that have seemingly followed established procedures, can be undone by judicial second-guessing based on timing technicalities that were not a barrier to the U.S. Supreme Court itself in similar circumstances. This is not just about maps; it’s about the stability of electoral outcomes.
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Frequently Asked Questions
What does the Virginia Supreme Court’s decision mean for the overturned election?
The decision means the election results approving the redistricting maps are void. New elections or processes will likely need to occur to properly ratify or redraw these maps, depending on future legal and legislative actions.
Why is this decision considered controversial?
It’s controversial because critics argue the court is using a procedural technicality to achieve a political outcome, particularly given the U.S. Supreme Court’s recent rulings on gerrymandering and the fact that the amendment passed constitutional muster in two legislative sessions before going to the voters.
Could this impact other states’ redistricting efforts?
Potentially. If state courts can be persuaded to scrutinize redistricting processes with extreme technicality, it could open new avenues for election challenges, though the specific procedural issues in Virginia may not be easily replicated elsewhere.
