The Volokh Conspiracy

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Elections

S. Ct. Denies Stay of Virginia Supreme Court's Redistricting Referendum Decision

|The Volokh Conspiracy |


Today's order is here; the application that was denied is here. The state's argument for a stay, which the Court rejected, begins thus:

Days before Virginia's deadline to begin administering the 2026 election for members of the United States House of Representatives, the Supreme Court of Virginia invalidated an amendment to the Commonwealth's Constitution that authorizes the General Assembly to adopt new congressional maps.

The Court purported to find a procedural flaw in the amendment's passage and ratification: that the General Assembly failed to pass the amendment prior to the "next general election" before passing it a second time and referring the amendment to the people for their approval. The basis for that holding was the Court's view that, contrary to the Constitution's own definition of the term "election" to refer to a single day in November, the term instead encompasses the entire period of early voting beginning in September. Based on that novel and manifestly atextual interpretation, the Court overrode the will of the people who ratified the amendment by ordering the Commonwealth to conduct its election with the congressional districts that the people rejected.

A stay is warranted because the decision by the Supreme Court of Virginia is deeply mistaken on two critical issues of federal law with profound practical importance to the Nation. The decision below violates federal law in two separate ways. First, it predicated its interpretation of the Virginia Constitution on a grave misreading of federal law, which expressly fixes a single day for the "election" of Representatives and Delegates to Congress. See 2 U.S.C. § 7. Where a state court's decision on purportedly state-law grounds was "interwoven with the federal law," this Court may intervene to ensure that the state court's decision complies with federal law. Michigan v. Long, 463 U.S. 1032, 1040 (1983). See also Three Affiliated Tribesof Fort Berthold Rsrv. v. Wold Eng'g, P.C., 467 U.S. 138, 153 (1984) (vacating state supreme court decision whose interpretation of state statute "rest[ed] on a misconception of federal law").

Second, by rejecting the plain text of the Virginia Constitution's definition of the term "election" to adopt its own contrary meaning, the Supreme Court of Virginia "transgressed the ordinary bounds of judicial review such that it arrogated to itself the power vested in the state legislature to regulate federal elections." Moore v. Harper, 600 U.S. 1, 36 (2023) (cleaned up). Either violation is sufficient for this Court to reverse the decision below. Accordingly, there is a "reasonable probability that this Court will grant certiorari and will then reverse the decision below."

Eugene Volokh is the Thomas M. Siebel Senior Fellow at the Hoover Institution at Stanford, and the Gary T. Schwartz Distinguished Professor of Law Emeritus and Distinguished Research Professor at UCLA School of Law. Naturally, his posts here (like the opinions of the other bloggers) are his own, and not endorsed by any institution. He is also the co-host of the Free Speech Unmuted podcast.