The Volokh Conspiracy
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Virginia Supreme Court Voids Virginia Gerrymander
The extreme partisan gerrymander of Virginia's congressional districts will not go into effect after all.
This morning, by a vote of 4-3, the Virginia Supreme Court declared the ballot initiative supporting a partisan gerrymander of Virginia's congressional districts to violate the Virginia Constitution.
The majority opinion by Justice Kelsey begins:
On March 6, 2026, the General Assembly of Virginia submitted to Virginia voters a proposed constitutional amendment that authorizes partisan gerrymandering of congressional districts in the Commonwealth. We hold that the legislative process employed to advance this proposal violated Article XII, Section 1 of the Constitution of Virginia. This constitutional violation incurably taints the resulting referendum vote and nullifies its legal efficacy.
The opinion concludes:
While the Commonwealth is free by its lights to do the right thing for the right reason, the Rule of Law requires that it be done the right way. Under the Constitution of Virginia, the right way "necessitate[s] compliance with the requirements of a deliberately lengthy, precise, and balanced procedure," Coleman, 219 Va. at 153, governing the lawful adoption of constitutional amendments. "[S]trict compliance with these mandatory provisions is required in order that all proposed constitutional amendments shall receive the deliberate consideration and careful scrutiny that they deserve." Id. at 154.
In this case, the Commonwealth submitted a proposed constitutional amendment to Virginia voters in an unprecedented manner that violated the intervening-election requirement in Article XII, Section 1 of the Constitution of Virginia. This violation irreparably undermines the integrity of the resulting referendum vote and renders it null and void. For this reason, the congressional district maps issued by this Court in 2021 pursuant to Article II, Section 6-A of the Constitution of Virginia remain the governing maps for the upcoming 2026 congressional elections.
Among other things, the majority notes that the state had argued vociferously against judicial review of the ballot initiative before a vote was held, noting that if the initiative failed there would be no need for any judicial review at all. Given that prior argument, the majority would not credit the state's argument that judicial review was inappropriate after the vote was held. That sort of "heads-I-win, tails-you-lose" argument is often disfavored by courts, as judges generally recognize such arguments as a way to circumvent judicial review altogether.
The dissent by Chief Justice Powell begins:
This Court has long recognized that our "'Constitution is certain and fixed.'" Staples v.
Gilmer, 183 Va 338, 350 (1944) (quoting Vanhorne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 308 (Pa. 1795)). "'[I]t contains the permanent will of the people,'" and, therefore, its meaning can only be altered by the people. Id. (quoting Vanhorne's Lessee, 2 U.S. (2 Dall.) at 308) (emphasis added). Notwithstanding this bedrock principle, today the majority has broadened the meaning of the word "election," as used in the Virginia Constitution, to include the early voting period. This is in direct conflict with how both Virginia and federal law define an election. Under the facts of this case, I believe the circuit court erred and I respectfully disagree with the majority's conclusion that the General Assembly did not strictly comply with Virginia's constitutional requirements. For this reason, I must respectfully dissent.
As this is a state-law-based decision, it has no legal effect on gerrymandering efforts in other parts of the country.
