Virginia’s Redistricting Effort and the Laborious Process to Amend its Constitution

The Virginia Supreme Court held last week that the process used to amend the Virginia Constitution to allow the state legislature to redraw congressional districts for the November midterm elections was unconstitutional. The ruling effectively nullified the April election in which more than three million Virginians voted and a majority approved the measure.

The amendment would have paved the way for the state legislature to conduct the 2026 midterm elections using a gerrymandered U.S. House map where 10 of the state’s 11 districts would favor Democratic candidates. That map was meant to replace a 2021 map, drawn by court-appointed special masters, in which six seats leaned Democratic, four leaned Republican, and one was a toss-up. The high court decision determined that the special masters’ 2021 map remained operative in the upcoming midterm elections.

In the midst of states battling to redistrict for partisan advantage ahead of the midterms, the Virginia Supreme Court’s ruling in McDougle v. Scott drew sharp criticism, with some going so far as to suggest that the members of the court be replaced. But the question before the court was, in fact, a procedural one: whether the legislature complied with Virginia’s strict process for amending the state constitution. The court answered this question in the negative, holding that the legislature did not follow the process laid out in the state constitution and thus did not have the power to redraw its congressional districts.

Complicated Amendment Process

Virginia’s current redistricting disputes originate with a constitutional amendment approved in 2020 that delegated the efforts to redraw the federal and state legislative districts to an advisory redistricting commission comprised of eight members of the state legislature and eight Virginia citizens. Under this amendment, if the commission could not agree on a map, redistricting power was then ceded to the Virginia Supreme Court. This deadlock happened in 2021, and the Virginia Supreme Court drew the current map with the help of two special masters.

Because of this constitutional amendment, when an unprecedented scramble to redistrict kicked off last year in multiple states, the Virginia Legislature could not just redraw the maps on its own via majority legislative vote — it had to seek an amendment to the Virginia Constitution that would give it the authority to redraw maps. The process it used in passing that amendment was at issue in McDougle.

The procedure for amending the Virginia Constitution is governed by Article XII, Section 1. This provision sets forth a four-step process: First, both houses of the legislature — the House of Delegates and the Senate — must vote to pass a constitutional amendment during a legislative session. Second, there must be an intervening election for the House of Delegates, Virginia’s lower legislative house. Third, both legislative houses must again vote to pass the constitutional amendment during the next regular legislative session. Fourth, the twice-approved proposed amendment goes to the voters, who must pass the amendment via popular vote.

Virginia Supreme Court Justice D. Arthur Kelsey stated in his majority opinion that this is a necessarily strenuous process: Constitutions should not be amended lightly. 

The process allows voters the chance to stop proposed amendments twice. First, they can vote to replace lawmakers who passed the proposed amendment the first time with those who are not in favor of the amendment at issue. Second, they can vote down the amendment itself if it gets to the ballot.

Virginia’s 2025–26 Redistricting Efforts

In contrast to federal elections, held in even years, Virginia holds state office elections on odd years. Thus, a general election for the House of Delegates was held November 4, 2025, with early voting starting September 19. During this time, Virginia voters had the opportunity to vote early (or on Election Day) for their preferred candidate for delegate, governor, and other statewide offices.

The legislature is not in session year-round, so it was in a special session during this period. This special session originally was limited primarily to considerations of budget bills, but lawmakers later voted on party lines to expand the session’s scope to include constitutional amendments. 

Then, on October 29 and 31, 2025, more than a month after early voting began, both houses of the legislature voted affirmatively — for the first time — to amend the Virginia Constitution. By this date, 1.3 million votes had already been cast for the House of Delegates election. Four days later was Election Day: November 4, 2025. 

On January 14 and 16, 2026, the legislature again approved the proposed amendment. The amendment was then sent to the people of Virginia for a popular vote on the issue. A majority of Virginians approved the amendment.

A Previous Opportunity to Weigh In

Throughout this process, litigation was pending in Virginia courts over whether the legislature followed the proper procedure to amend the Virginia Constitution. In March, the dispute reached the Virginia Supreme Court, which held that it could not intercede in the process until after the election was over. This holding, also controversial, was based on Virginia Supreme Court precedent from 1912, Scott v. James, which held that the court cannot address procedural problems related to a constitutional amendment process until after the popular vote. 

Just one day after the April 21, 2026 election, a lower court ruled that the process was improper and nullified the amendment. Among other reasons, the court explained that the initial legislative vote on the amendment on October 31, 2025, was outside the scope of the special session; there was no intervening general election of the House of Delegates before the second vote, as required by the state constitution; the proposed amendments were not posted and published at courthouses at least three months ahead of the general election, a statutory requirement; and the ballot language was “flagrantly misleading” and “did not accurately describe the proposed amendment.” The court did not elaborate on what made the measure misleading.

Last Week’s Decision

The Virginia Supreme Court’s majority addressed one issue on appeal: whether there was an intervening general election of the House of Delegates between the legislature’s two votes on the proposed amendment.

The state defended the propriety of the process, arguing that because the November 4, 2025, Election Day came four days after the first legislative approval, the constitutional requirement that there be a “general election of members of the House of Delegates” between the two legislative votes had been satisfied. The term “general election,” the state maintained, referred only to Election Day, not to the entire voting period. 

In a 4–3 decision, the court disagreed, stating that “general election” referred to the whole election — September 19 through November 4. Election Day, the court said, was just the final day of the general election. Citing more than a century of history of general elections held over multiple days, the majority reasoned that a proper reading of “general election” required consideration of the historical context and the public’s understanding of the phrase. According to the majority, the public would define “general election” to include the large period of early voting during which over a million Virginians voted. The majority emphasized this interpretation would also preserve Virginians’ “constitutionally protected opportunity to vote for or against delegates who favor or disfavor amending the Constitution.” Under the majority’s interpretation, therefore, the legislature had failed to vote on the constitutional amendment prior to the intervening election of the House of Delegates, as the state constitution required.

Thus, just 16 days after the people of Virginia approved the constitutional amendment via popular vote, the court nullified it as improperly codified.

The dissent was persuaded by the state’s definition of “general election,” pointing to Article II, Section 4 of the Virginia Constitution, which grants the legislature the power to determine the time and manner of conducting elections, and Article IV, Section 3, which requires that delegates “be elected” “on the Tuesday succeeding the first Monday in November.” The legislature invoked these powers, the dissent said, by defining “general election” in a statute as “an election held in the Commonwealth on the Tuesday after the first Monday in November.” The dissent also emphasized that the same statute noted early voting began “prior to any election.” The dissent invoked other provisions of the state constitution, which also state that elections “shall be held on Tuesday,” not that the election ends on that Tuesday. The dissent would have entered judgment for the state and allowed the legislature to redraw the map.

Gerrymandering Nationwide

The Virginia fight takes place in the context of an increasingly intense redistricting war around the country.

In 2025 and 2026, many states — including California, Florida, Louisiana, Missouri, North Carolina, Tennessee, Texas, Utah, and Virginia — have sought to redraw their U.S. House of Representatives districts to create a partisan advantage in the November 2026 general election. These efforts have gained speed since the U.S. Supreme Court last month in Louisiana v. Callais held that Louisiana’s congressional map, which included two majority-Black districts, was an unconstitutional racial gerrymander in violation of the 14th Amendment to the U.S. Constitution. Callais allows states to prioritize partisan goals over racial balance in drawing congressional districts — making it harder to challenge maps as racial gerrymanders if the state claims partisan intent.

Each of these states have followed their own required processes for redistricting. Some, like Virginia, have had to put redistricting to a popular vote: Californians passed a ballot initiative in November 2025 that temporarily subverted the state’s independent redistricting commission and adopted Democratic-friendly maps drawn by the state legislature. Other states do not require redistricting to go through the voters: Texas, North Carolina, Utah, Florida, and Tennessee were all able to redraw their House districts without a ballot initiative.

In this context, the Virginia Supreme Court’s decision to nullify the constitutional amendment was, in part, a result of the state’s redistricting processes — because of the 2020 redistricting commission constitutional amendment, Virginia could not redistrict in this moment without passing another constitutional amendment. In attempting to pass that amendment, the legislature did not properly adhere to the amendment processes laid out in the state constitution, based on the court’s interpretation of those processes.

The Virginia Supreme Court’s decision does not preclude following the proper procedure and trying again for 2028.

Laura Niday is an associate in the Washington, DC office of Steptoe, where her pro bono practice includes voting rights litigation.

Suggested Citation: Laura Niday, Virginia’s Redistricting Effort and the Laborious Process to Amend its Constitution, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 15, 2026), https://statecourtreport.org/our-work/analysis-opinion/virginias-redistricting-effort-and-laborious-process-amend-its