By a vote of 4-3, the Virginia Supreme Court only deleted the state’s recently adopted congressional mapswhich were intended to give Democrats four additional seats in the state assembly elections after the next midterms. The state adopted these new maps in order to disenfranchise Republicans in Texas and other red states.
The opinion of many and the opposition inside Scott v. McDougle hyperfixate on the meaning of the word “election” in the Virginia state constitution, and neither opinion is particularly convincing. Both sides can cite an array of dictionaries, historical sources, ancient precedents, and other sources that support their preferred definition of the term.
The text, in other words, contributes very little to the conflict in Scott. The majority and dissent can identify more than enough documentary evidence to make a plausible argument.
Instead of offering two warring opinions on the meaning of a word whose definition seems to change according to linguistic and historical context, the justices would be better served if they asked a more basic question: What is the relevant provision of the Virginia Constitution supposed to fulfill?
The case is about whether early voting overrides Virginia’s authority to amend its constitution
Scott activates the provision of the Virginia Constitution that governs amendments to the state constitution. Simply put, to amend the constitution, the state legislature must vote to propose an amendment. Then, “after the next general election of members of the House of Representatives” is done, the parliament must vote again to approve the same amendment.
After the amendment has been approved twice, by the next two parliaments, it is then submitted to the voters for approval. If a majority of voters approve the amendment, it will become part of the state constitution.
In 2020, the state used this process to amend its constitution to put in place protections against gerrymandering. Scott involved the most recent amendment, one that Virginia voters approved earlier this year that temporarily bypassed the 2020 amendment. The vote allowed the state to redraw its maps — comparing it to Republican governors in other states.
A majority of the state Supreme Court, however, holds that the most recent amendment is invalid because, when the state legislature first proposed it. this amendment in October 2025, it did so after early voting had already begun in the state. This is problematic, they claim, because it means that “1.3 million or more Virginians” had already cast their ballots before the amendment was proposed, and thus were denied their opportunity to support or disapprove of the proposed amendment when they cast their ballots in state legislatures.
Basically, many argue that Virginia voters who opposed the amendment were disenfranchised because they were denied the opportunity to vote for opposing legislators in the 2025 state election.
But there is a huge problem with this disenfranchisement argument: The amendment was submitted to the voters in a referendum. Virginia voters, in fact, were given the opportunity to vote up or down on the restrictive amendment. And most of them voted to approve.
If the Virginia constitution required a simple amendment process, where the next two votes of the state legislature alone were sufficient to amend the constitution, then the majority’s argument would make more sense. In that case, the election that will be held between the two parliamentary elections would be the only opportunity for the voters of the states to measure the amendment.
But under Virginia’s original constitution, voters are given a direct opportunity to vote on constitutional amendments. So it is not logical to say that they were denied the opportunity to express their opinion on the amendment during the parliamentary vote.
A decision without good reason is still the law
In any case, the fact that I – or anyone else, for that matter – finds this decision unconvincing doesn’t matter. The Virginia Supreme Court is the highest court in the state, and thus the final word on any question of state constitutional law.
The results mean that, in all likelihood, the four newly Democratic seats this November will revert to Republican seats. Meanwhile, Republican forces in Texas and other states are standing up.
If Democrats can identify a federation constitutional problem with the state supreme court’s decision, then they could challenge the state court’s decision in federal court. But it is not clear what the violation might be. And, even if Democrats can find violations, federal court cases can be appealed to the Republican-leaning US Supreme Court. So the likelihood that a federal court will save the Democrats here is very slim.
