Virginia Supreme Court Ruling Made E-Z
The logic was simple: "Before an election" means "before the first votes are cast."
Upcoming Bastiat’s Window essays will focus on music, healthcare prices, little-knowns who changed the 20th century, aviation reform, space travel, Middle East affairs. But after the Virginia Supreme Court’s blockbuster ruling, here’s one (final?) piece on the gerrymander kerfuffle. (Earlier pieces were “Release the SpanKraken!” and “Dems and the Wood Chipper or Dems in the Wood Chipper?.”) To newcomers, my political leanings are in the vicinity of “classical liberal” (proponent of limited government, but not a doctrinaire libertarian). I dislike both parties’ gerrymanders.
WHAT THE COURT DID
On 5/8/26, the Virginia Supreme Court voided Democrats’ drive to gerrymander the state’s U.S. House districts before the 2026 election. Democrats wished to scrap the nonpartisan map drawn after the 2020 Census in favor of a highly partisan, geographically incoherent map aimed at changing the state’s delegation from 6 Democrats and 5 Republicans to 10 Democrats and 1 Republican—in a state that cast 46% of its 2024 votes for Donald Trump and whose governor, lieutenant governor, and attorney general were Republicans until earlier this year. Nonpartisan, decennial redistricting is enshrined in the State Constitution, so partisan, mid-decade redistricting requires an amendment. The Court held that in rushing to redistrict, Democrats violated the constitutionally mandated amendment process—fatally tainting the effort.
WHAT VIRGINIA’S 1971 CONSTITUTION AIMS TO PREVENT
Like the U.S. Constitution, the 1971 Virginia Constitution makes the amendment process lengthy and difficult. No passing amendments over cocktails and/or asking the voters to endorse them the next day. An amendment requires a four-step, multi-year process, and the Court ruled that Democrats failed at STEP 2—thereby denying 40% of the state’s voters a chance to signal support or opposition last Fall.
HERE’S THE REQUIRED PROCESS
To add an amendment to the State Constitution requires:
Approval by the General Assembly (legislature). This occurred on 10/31/25.
A general election where voters can vote for/against General Assembly candidates for the House of Delegates who agree/disagree with them on the proposed amendment. Voters cast ballots between 9/19/25 and 11/4/25.
Re-approval by the new General Assembly after their January swearing-in. This happened 1/14/26.
A “yes” vote by voters in a statewide referendum. This occurred by a 3-percentage point margin in votes cast between 3/6/26 and 4/21/26.
HERE’S WHERE DEMOCRATS BOTCHED THE PROCESS
In STEP 2, voters must have a chance to signal their approval or disapproval of the amendment by choosing a new House of Delegates. Democrats passed the enabling amendment on 10/31/25—four days before the traditional 11/4/25 “Election Day.” However, early voting for the House of Delegates election began on 9/19/25. By the time the General Assembly passed the amendment, 1.3 million votes—around 40% of the 2025 total—had already been cast. In the Court’s view, early voters were denied the chance to indirectly voice their views on the amendment through their votes for the House of Delegates. Democrats, in effect, claimed legislative approval had to occur before the last voters voted; the Court said legislative approval had to occur before the first voters voted.
COMPLAINTS OVER THE RULING
Lots of additional complaints have boiled up following the Court’s ruling. Here are some specifics:
RED STATES ARE GERRYMANDERING: Democrats rightly complain that a slew of Republican-governed states (e.g., Texas, Florida, Ohio) are also engaged in mid-decade gerrymandering. Many have asked why red states can do this, but not blue Virginia. The answer is that Virginia’s laws do not apply in other states, and other states’ laws do not apply in Virginia.
RED STATES HAVE VIOLATED LAWS: There are credible arguments that Florida, Tennessee, Texas, and other red states may have violated their constitutions on grounds like compactness, racial discrimination, etc. If so, that warrants voiding those states’ gerrymanders. But violations in those states don’t entitle Virginia to violate its own constitution. (I’d love to see ALL the gerrymanders discarded.)
THE U.S. SUPREME COURT HAS ADDED TO THE TURMOIL: On April 29, 2026, in Louisiana v. Callais, the U.S. Supreme Court struck down that portion of the Voting Rights Act that effectively mandates gerrymandering to create districts representing minority groups. While this has prompted more scurrying for additional Republican seats in 2026, it’s a different issue from the Virginia case.
VIRGINIA’S COURT WAS SHARPLY SPLIT: The Virginia decision was issued by a 4-3 majority, but this doesn’t represent the de facto partisanship one sees on the U.S. Supreme Court. Virginia justices are elected by the General Assembly, and most or all current justices were approved by bipartisan consensus. This ruling was written by Justice D. Arthur Kelsey—previously appointed to the state’s Court of Appeals by Democratic Governor (now Senator) Mark Warner.
VIRGINIA JUSTICES SHOULD BE FORCED OUT: Post-Court ruling, redistricting supporters have floated various ideas for how to revivify the dead amendment. Some have suggested an appeal to the U.S. Supreme Court, but the federal justices are unlikely to weigh in on a purely state issue. (Progressive Ian Milhiser warns that such intervention could backfire on Democrats nationwide.) Some have suggested lowering the mandatory retirement age for Virginia justices from 75 to 54, forcing the whole Court into retirement en masse, appointing new justices, and re-adjudicating the case. There are dozens of reasons why such a banana republic ploy is unlikely, but the biggest reason is probably the clock—ballots for primaries in the old districts are already headed toward the post office.
THE RULING FOLLOWED THE REFERENDUM: Many Democrats ask why the Court waited till after the referendum to weigh in. However, the Democratic Attorney General’s office argued before the Court that the justices had no legal authority to act until a referendum had actually passed. The Court accepted that argument and waited. The Court’s timing and the logic behind it are not rocket science.
OTHER CONSTITUTIONAL PROBLEMS
The Court mostly limited its decision to the Democrats’ failure to pass the amendment prior to the beginning of early voting in 2025. Absent that problem, however, there were other potential challenges waiting in the wings. Among them:
There were questions about whether the Special Session of the General Assembly was empowered to pass an amendment on 10/31/25.
The proposed gerrymander likely violated state laws requiring compact districts—geographically concentrated, regular shape, constituents living as close to one another as possible, non-jagged boundaries.
The ballot question suggested that the amendment’s purpose was “to restore fairness”—a probable violation of the mandate that any ballot referendum should state its question in neutral terms.
Any of these issues and others might well have led the Court to void the amendment process.
ALTERNATIVE VIRGINIA MAPS
I say that if you’re going to gerrymander, let’s do it artistically! I asked ChatGPT to design Congressional delegation maps in the styles of MC Escher, Keith Haring, Jean-Michel Basquiat, and Louis Wain.
What a wonderful explanation! Thank you sir! Hope you're well.
Thank you. If only "the media" in all its current variations had reported the news based on facts rather than based on the "politics of power": who "won" and who "lost". But alas....