Background
In October 2025, the Virginia General Assembly voted to propose a constitutional amendment that would suspend Article II, Section 6-A—the provision establishing a bipartisan Virginia Redistricting Commission created to prevent partisan gerrymandering. The proposed amendment would authorize the General Assembly to redraw congressional districts outside the decennial census cycle. The General Assembly voted again in February 2026 to approve the amendment and enacted a new congressional map projected to shift representation from 6-5 to 10-1 in favor of one major political party.
The amendment was submitted to voters on March 6, 2026—the first day of early voting. By October 31, 2025, when the General Assembly first voted to propose the amendment, approximately 1.3 million Virginians (roughly 40% of total votes cast) had already voted in the intervening general election for House of Delegates members. The amendment passed on April 21, 2026, by approximately 3.38 percentage points, with 1,604,276 voting “yes” and 1,499,393 voting “no.”
Plaintiffs challenged the amendment’s validity, arguing that the General Assembly’s October 31 vote violated Article XII, Section 1 of the Virginia Constitution, which requires an intervening general election between two legislative votes approving a constitutional amendment. The Commonwealth argued that because Election Day was November 4, 2025—four days after October 31—the intervening-election requirement was satisfied.
The Court’s Holding
The Supreme Court of Virginia held that the legislative process violated Article XII, Section 1 and that this constitutional defect “incurably taints” the referendum vote and nullifies its legal efficacy. The Court rejected the Commonwealth’s interpretation that “election” means only the final day of voting. The historical and ordinary meaning of “election” encompasses the entire voting period, not a single date. This is evident from the continuous use of the term since 1870 in successive Virginia constitutions, none of which limited “election” to a single day.
The Court emphasized that the intervening-election requirement serves a critical democratic function: it allows voters two opportunities to express their views on a proposed amendment—indirectly through elections for House delegates and directly through the popular vote. Over 1.3 million early voters in this case were deprived of the constitutional opportunity to learn about the amendment and vote for or against delegates who supported or opposed it, because they cast ballots before October 31 without knowledge of the General Assembly’s impending vote. The Court rejected the Commonwealth’s contention that early voters “unknowingly forfeited” their rights by not anticipating an October 31 legislative action.
The Court also clarified that while Scott v. James (1912) addresses the timing of injunctive remedies before an election, it does not bar judicial review of constitutional amendment procedures after completion of the voting process. The Court has a constitutional duty to determine the validity of proposed amendments, and neither a high vote margin nor a close one affects the analysis of procedural constitutionality.
Key Takeaways
- Constitutional amendments must comply strictly with Article XII, Section 1 procedures; courts have the power and duty to review whether such requirements have been met.
- The term “election” in the constitutional amendment context means the entire voting period, not merely Election Day, and is to be interpreted according to its ordinary meaning and historical usage.
- The intervening-election requirement serves the deliberative purpose of permitting voters to influence the composition of the General Assembly between the first and second legislative votes on a proposed amendment.
- Depriving early voters of the opportunity to learn about and respond to a proposed amendment violates the constitutional amendment process, regardless of the final vote margin.
- Procedural defects in the amendment process cannot be cured by subsequent voter approval and render the amendment void ab initio.
Why It Matters
This decision reasserts the judiciary’s authority to enforce constitutional procedures governing the amendment process itself—a power distinct from reviewing the substantive content of proposed amendments. The ruling prevents a political majority from circumventing deliberative safeguards embedded in the state constitution. By holding that the term “election” encompasses the full voting period rather than a single day, the Court protected the integrity of early voting, which comprised approximately 45% of votes cast, and ensured that voters could meaningfully exercise the indirect democratic check built into the amendment procedure.
The case also addresses a broader constitutional principle: in a constitutional republic, even measures approved by a popular vote can be invalidated if the process by which they were presented to voters violated constitutional requirements. The Court’s rejection of the Commonwealth’s argument that voter approval insulates an amendment from procedural challenge means that constitutional amendment procedures have meaningful legal force, not merely aspirational value.