Virginia Supreme Court Strikes Down Redistricting Amendment
By: Elizabeth Price Foley and Daniel Bruce
On May 8, 2026, the Supreme Court of Virginia issued its opinion in Scott v. McDougle, invalidating a proposed constitutional amendment that would have authorized the General Assembly to gerrymander the Commonwealth’s congressional districts 10-1 in favor of Democrats.
Holtzman Vogel filed an amicus curiae brief in the case on behalf of the Honest Elections Project, arguing that the amendment was invalid because it passed during a special session that the General Assembly had unlawfully held open since 2024, violating a long-recognized rule that special sessions expire automatically when the legislature’s next regular session convenes. The Virginia Supreme Court noted that this “parallel-sessions anomaly raises serious issues.”
Although the parallel-sessions anomaly raised by Holtzman Vogel’s brief was a “serious” issue, the Court concluded that it “need not resolve” it at this time because the amendment was unconstitutional on separate grounds. Specifically, the Court held that the process used to advance the amendment violated Article XII, Section 1 of the Virginia Constitution, which mandates that a proposed amendment be referred to the General Assembly for a second vote after the “next general election of members of the House of Delegates.” This provision, said the Court, “slow-walks the constitutional-amendment process” on purpose, requiring the General Assembly to vote twice, during two separate regular legislative sessions, ensuring an intervening election between the legislature’s two votes on the proposed amendment. This constitutional process, said the Court, ensures that voters know where candidates stand on a proposed amendment before casting their votes during the intervening election.
The redistricting amendment was unconstitutional because there was no intervening “election” between the General Assembly’s first and second votes to pass the proposed amendment. The first vote occurred on October 31, 2025; the second occurred on in early 2026. No intervening “election” occurred between these two votes because the 2025 general “election” had already begun before the proposed amendment’s first passage. By the time of the first passage, the Court noted, “over 1.3 million votes had been cast in the general election, which was approximately 40% of the total vote for that election cycle.”
The Court held that Virginia Constitution’s reference to the “general election” does not describe a single day event but instead a broader process of choosing representatives, including the “combined actions of voters casting ballots and officers of election receiving those votes and closing the polls on the last day of the election.” In harmony with both the plain meaning of the constitutional text and its historical context, the phrase “general election” includes the early-voting period.
The Holtzman Vogel team on the amicus brief included Jason Torchinsky, Elizabeth Price Foley, Drew Watkins, and Bill Duffin.
