By a 4-3 vote, the Virginia Supreme Court docket simply struck down that state’s lately enacted congressional maps, which had been meant to present Democrats 4 extra seats within the state’s congressional election after the upcoming midterms. The state enacted these new maps to cancel out Republican gerrymanders in Texas and different purple states.
Each the bulk opinion and the dissent in Scott v. McDougle hyperfixate on the which means of the phrase “election” within the Virginia state structure, and neither opinion is especially persuasive. Each side are in a position to cite a raft of dictionaries, historic sources, previous precedents, and different sources that assist their most popular definition of this phrase.
Textualism, in different phrases, contributes little or no to the dispute in Scott. Each the bulk and the dissent are in a position to establish greater than sufficient textual proof to make a believable argument.
Quite than producing two eye-glazing opinions preventing over the which means of a phrase whose definition seems to shift relying on each linguistic and historic context, the justices would have produced a greater opinion if they’d requested a extra primary query: What’s the related provision of the Virginia Structure truly supposed to perform?
The case is about whether or not early voting nullifies Virginia’s energy to amend its structure
Scott activates the availability of the Virginia Structure that governs the state’s constitutional amendments. Briefly, in an effort to amend the structure, the state legislature should vote to suggest an modification. Then, “after the subsequent normal election of members of the Home of Delegates” is held, the legislature should once more vote to approve the identical modification.
After that modification is authorised twice, by two subsequent legislatures, it’s then submitted to the voters for his or her approval. If a majority of the voters approve of the modification, it turns into a part of the state structure.
In 2020, the state used this course of to amend its structure to impose anti-gerrymandering safeguards. Scott concerned a newer modification, the one Virginia voters authorised earlier this yr that briefly bypassed that 2020 modification. That vote allowed the state to redraw its maps — counterbalancing Republican gerrymanders in different states.
The vast majority of the state Supreme Court docket, nevertheless, claims that the newer modification is invalid as a result of, when the state legislature first proposed this modification in October 2025, it did so after early voting had already begun within the state. This can be a downside, they declare, as a result of it implies that “1.3 million or so Virginians” had already forged their ballots earlier than the modification was proposed, and thus they had been denied their alternative to specific assist or disapproval of the proposed modification once they forged their vote for state lawmakers.
In essence, the bulk argues that Virginia voters who opposed the modification had been disenfranchised as a result of they had been denied a possibility to vote for lawmakers who oppose it within the 2025 state legislative elections.
However there’s a reasonably obvious downside with this disenfranchisement argument: The modification was submitted to the voters in a referendum. Virginia voters had been, in truth, given a possibility to forged an up or down vote on the redistricting modification. And a majority of them voted to approve it.
If Virginia’s structure referred to as for a less complicated amendments course of, the place two subsequent votes of the state legislature had been alone adequate to amend the structure, then the bulk’s argument would make extra sense. In that case, the election held between these two legislature votes can be state voters’ solely alternative to weigh in on the modification.
However underneath Virginia’s precise structure, voters are given a direct alternative to vote on a constitutional modification. So it is senseless to say that they had been denied a possibility to specific their view on the modification by the timing of a legislative vote.
A poorly reasoned choice continues to be legislation
In any occasion, the truth that I — or anybody else, for that matter — finds this choice unpersuasive doesn’t actually matter. The Virginia Supreme Court docket is the best Court docket within the state, and is thus the ultimate phrase on any query of state constitutional legislation.
The consequence implies that, most definitely, these 4 new Democratic seats this November will return to being Republican seats. In the meantime, the Republican gerrymanders in Texas and different states stand.
If Democrats can establish a federal constitutional downside with the state supreme courtroom’s choice, then they may conceivably problem the state courtroom’s choice in federal courtroom. However it’s unclear what that violation could be. And, even when Democrats can discover a violation, federal courtroom instances could also be appealed to a Republican US Supreme Court docket. So the probability the federal judiciary will bail out Democrats right here is slim to none.
