Virginia Supreme Court seems skeptical about Democratic gerrymandering
Virginia voted last week in favor of a referendum to adopt a gerrymandered congressional map that would all but guarantee that 10 out of the state's 11 congressional seats go to Democrats in the upcoming midterm election.
There remains a good chance, however, that the new map may not ultimately be adopted.
Background
There are numerous legal battles across Virginia over whether the gerrymandering referendum that passed Tuesday is lawful. One of those battles — Scott v. McDougle — is now before the Virginia Supreme Court.
In October 2025, Republican state lawmakers and members of the Virginia Redistricting Commission filed a lawsuit, claiming that the special session reconvened late last year to consider a constitutional amendment on redistricting was invalid as it was called not by the governor, who holds the exclusive right to do so, but by the speaker of the state House.
The complaint noted further that while the Virginia House of Delegates "has no constitutional authority to propose a plan to redraw or reapportion districts" for the U.S. Congress, as this falls under the purview of the Virginia Redistricting Commission, the state House nevertheless usurped the authority.
To bypass the commission, lawmakers proposed a constitutional amendment to redraw the congressional map. Getting this amendment on the April 21 ballot required the approval of a corresponding resolution in two separate legislative sessions on either side of a state election. Challengers contend that this process was bungled and legally flawed.
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Tazewell County Circuit Judge Jack Hurley Jr. ruled on Jan. 27 that the proposed constitutional amendment was unlawful, but the Virginia Supreme Court subsequently ruled that Virginians could still vote for it in the statewide April 21 referendum while the case proceeds.
The day after the referendum passed, Hurley blocked the state from certifying the results of the vote, ruling that the legislature's constitutional amendment and the special election on it were invalid.
Skeptical of Democratic plot
On Monday, the Virginia Supreme Court heard arguments in Scott v. McDougle.
One Virginia justice extracted concessions from the defense at the outset that the "yes" vote in the referendum "doesn't tell us anything" about the merits of the challengers' claims, and that the Virginia General Assembly didn't follow its own procedural rules with regard to the special session during which the new congressional map was passed.
Multiple justices expressed skepticism about the validity of that special session.
One justice said that contrary to the previous expectation in Virginia that the legislature wouldn't sit year-round, the Democratic "interpretation of the special session would allow them to sit in continuous session for the better part of two years."
The same justice appeared receptive to the argument by Thomas McCarthy, attorney arguing for the plaintiffs, that "it's sort of a nonsensical position to say that the special session exists through a regular session" — referencing the overlap of the 2024 special session and the 2025 general session.
The justices also did not appear entirely convinced by Democrats' argument that enough time had passed between when the amendment was first passed and the 2025 state election. The legislature voted on the amendment in October, weeks after early voting for the 2025 election had already begun.
"What is your position — your client's position — regarding a constitutional amendment that is adopted at 6 p.m. on Election Day with an hour left at the polls?" asked one justice. "Is that still the next general election?"
Virginia Solicitor General Tillman Breckenridge responded that the amendment must only be passed before Election Day, rather than on it.
McCarthy argued to the contrary, claiming that for the amendment to have been valid, it should have been passed before the entire voting period, not just before Election Day 2025. A Virginia Supreme Court justice subsequently noted that the amendment process responsible for the passage of the gerrymandering legislation was unprecedented.
Of note, the Circuit Court of the City of Richmond ruled on Sunday in a separate but related case that the Virginia General Assembly did not exceed its authority when passing the amendment on redistricting.
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