Virginia Supreme Court Strikes Down Redistricting Amendment

On May 8, 2026, the Supreme Court of Virginia struck down the state’s redistricting amendment in a 4–3 decision, holding that the General Assembly violated the state constitution’s procedural rules for amending the document. The ruling in Scott v. McDougle nullified an amendment that voters had approved just weeks earlier and preserved the existing court-drawn congressional map for the 2026 midterms. The U.S. Supreme Court declined to intervene a week later, ending the fight.¹

What the Court Held

The decision turned on a single procedural requirement. Article XII, Section 1 of the Virginia Constitution sets out a four-step process for amending the document: both chambers must pass the proposed amendment, an election for the House of Delegates must then occur, the next legislature must pass the amendment again, and voters must approve it at a referendum held no sooner than 90 days after the second legislative passage.² The intervening House election exists so voters can weigh candidates’ positions on the amendment before returning them to Richmond.

The General Assembly cast its first vote on the redistricting amendment on October 31, 2025. Early voting for the November 2025 House of Delegates election had begun on September 19. By the time lawmakers voted, more than 1.3 million Virginians had already cast ballots, roughly 40 percent of the eventual total.³

Writing for the majority, Justice D. Arthur Kelsey rejected the state’s argument that “election” refers only to Election Day itself. The constitutional term, the court held, encompasses the entire voting period, early voting included. Because the first legislative vote landed inside a general election that was already underway, no true intervening election separated the two required legislative passages. Justice Kelsey described the amendment process as a “deliberately lengthy, precise, and balanced procedure” meant to keep the constitution from being “changed lightly,” and concluded that the procedural violation “incurably taints the resulting referendum vote and nullifies its legal efficacy.”³

The court also rejected the argument that voter approval at the April 21, 2026 referendum insulated the amendment from judicial review. The majority asserted its authority to review whether the process complied with the constitution regardless of how the popular vote came out.³ It affirmed the additional findings of the Tazewell County Circuit Court that lawmakers had exceeded the scope of the special session in which the first vote took place and had failed to meet statutory public notice requirements.¹

The Dissent

Chief Justice Cleo Powell, joined by Justices Thomas Mann and Junius Fulton III, would have upheld the amendment. Powell wrote that the General Assembly, exercising its constitutional authority over elections, had defined “general election” in Virginia’s election code as a single day. The statutory text, she said, “clearly establishes that the General Assembly … chose to limit elections to a single day,” and the majority erred in equating the early voting period with the election itself.⁴

What the Amendment Would Have Done

House Joint Resolution 6007 proposed temporarily suspending the authority of Virginia’s bipartisan redistricting commission and letting the General Assembly draw new congressional districts if another state pursued a non-court-ordered mid-decade redistricting. The legislative authority would have sunset on October 31, 2030, after which the commission would resume its standard role.⁵

Democrats, who controlled the General Assembly, passed the amendment on party-line votes during a special session in October 2025 and again during the 2026 regular session. The ballot question, put to voters on April 21, 2026, asked whether the constitution should be amended “to allow the General Assembly to temporarily adopt new congressional districts to restore fairness in the upcoming elections.” Voters approved it 1,604,276 to 1,499,393.³

The stakes were concrete. In February 2026, while the amendment was still working its way through the process, the General Assembly adopted a new congressional map designed to convert Virginia’s 6–5 Democratic delegation into a 10–1 Democratic advantage.⁶ The plan created five districts radiating from Northern Virginia into rural areas such as the Shenandoah Valley, the Piedmont, and Tidewater. Nearly half the state’s population would have been moved into a new district. One district, the proposed 7th, was nicknamed “the Lobster” for its shape.⁷ Only the far southwestern corner of the state would have remained a safe Republican seat.

The lead challenge was filed by state Senator Ryan McDougle, along with fellow Republican legislators and individual voters. A day after the referendum passed, Tazewell County Circuit Court Judge Jack C. Hurley Jr. voided the results and blocked certification, finding both the timing violation and that the ballot question used “misleading” and “partisan” language.⁸ The supreme court affirmed.

The U.S. Supreme Court Declined to Intervene

On May 11, 2026, Virginia Attorney General Jay Jones, House Speaker Don Scott, and Senate leaders Scott Surovell and L. Louise Lucas filed an emergency application asking the U.S. Supreme Court to stay the state court’s ruling.⁹ They argued the Virginia court had misread federal law by treating early voting as an extension of the election itself, pointing to 2 U.S.C. § 7 and federal appellate decisions that permit early voting precisely because it does not expand the legal duration of an election. They also invoked Moore v. Harper, contending the state court had “transgressed the ordinary bounds of judicial review” by substituting its own interpretation for the constitution’s plain text and thereby intruding on legislative power over federal elections.¹⁰

Republican respondents replied that the case involved “state courts applying state law to hold state actors accountable,” and that the federal arguments had not been properly raised below. On May 15, 2026, the U.S. Supreme Court denied the emergency application in a brief unsigned order with no public dissents.¹¹

What the Ruling Means for 2026 and Beyond

Virginia’s 2026 congressional elections will run under the maps drawn by court-appointed special masters in 2021, which produced the current 6–5 Democratic-to-Republican split. The primary is set for August 4, 2026, with early voting starting June 18, and the general election is November 3, 2026.¹² All eleven congressional districts have candidates filed for both parties.¹³ The bipartisan Virginia Redistricting Commission is set to resume its standard decennial role after the 2030 census.

Governor Abigail Spanberger, who had already confirmed before the U.S. Supreme Court’s order that the state would not use the proposed map, said her focus would be on “ensuring that all voters have the information necessary to make their voices heard this November in the midterm elections.”¹⁴

Fallout at the Court Itself

The 4–3 split tracked broadly with the political conditions under which the justices were elected. Justices Kelsey, Stephen McCullough, and Teresa Chafin were elected when Republicans controlled both chambers, and were joined by Justice Wesley Russell, elected in 2022 with divided control. The three dissenters were elected under split or Democratic control.¹⁵ Kelsey’s term expires in January 2027 and McCullough’s in 2028, and both face reappointment by the Democratic-controlled legislature.¹⁶

After the ruling, some Democrats floated retaliatory measures. In a private conversation between Virginia’s Democratic U.S. House members and Minority Leader Hakeem Jeffries, lawmakers discussed lowering the mandatory retirement age for state supreme court justices from 73 to 54, which would have forced every sitting justice off the bench. The idea collapsed within days. Senate Majority Leader Surovell called it an “extreme overreaction,” and Governor Spanberger rejected it.¹⁷ Delegate Dan Helmer publicly called on the General Assembly to deny Justice Kelsey reappointment; House Speaker Scott called it “inappropriate to be making public comments on jurists at this time.”¹⁸ The last time Virginia denied a supreme court justice reappointment for partisan reasons was 1883, under the Readjuster Party.¹⁶

1
WHRO. Supreme Court of Virginia Strikes Down Redistricting Amendment Keeps Current Maps in Place
2
Virginia Code Commission. Constitution of Virginia, Article XII, Section 1
3
Supreme Court of Virginia. Scott v. McDougle, Record No. 260127
4
VPM. SCOVA Redistricting Referendum
5
Maryland Matters. VA Democrats Roll Out Redistricting Amendment to Counter GOP Map Changes in Other States
6
Virginia Mercury. A Voters Guide to Virginias 2026 Redistricting Push
7
Center for Politics. New VA Ratings
8
Courthouse News. Virginia Judge Halts Redistricting Referendum Certification for Now
9
SCOTUSblog. Virginia Asks Supreme Court to Allow It to Reinstate Congressional Map
10
U.S. Supreme Court. Scott v. McDougle, Application for Stay, No. 25A1240
11
SCOTUSblog. Court Denies Virginias Request to Reinstate Congressional Map
12
Virginia Mercury. Virginias Redistricting Amendment Was Struck Down Whats Next
13
VPAP. US House Candidates General
14
VPM. SCOVA Redistricting Reactions
15
WTVR. State Supreme Court Justices Explainer
16
Cardinal News. Redistricting Case Puts at Least Two Virginia Supreme Court Justices in Awkward Spot
17
Virginia Business. Virginia Democrats Balk at Proposal to Retire State Supreme Court
18
Virginia Scope. Democrats Could Soon Change Partisan Makeup of Virginia Supreme Court