Mere days after the United States Supreme Court declared that the Voting Rights Act cannot be invoked to bar racially discriminatory gerrymandering as long as state legislators make a halfway plausible claim that the new districts were drawn for purely political purposes, the Virginia Supreme Court overturned a statewide election to approve purely political maps.

Tennessee, Alabama, South Carolina… all actively redrawing their maps behind closed doors to strip Black voters of meaningful suffrage. Virginia sent their maps to the electorate, and after it passed, the state supreme court scrambled to rewrite the rules to erase the whole election.

Which, honestly, tracks for a state with a “state song emeritus” about a slave wanting to be brought back to his plantation.

Reading the majority opinion, reverse engineered to secure its political objective, really makes you appreciate the U.S. Supreme Court’s enthusiasm for the shadow docket. Sometimes trying to come up with a quasi-coherent justification is just downright embarrassing.

From Madison’s era to the present, political parties of every stripe have offered if-by-whiskey arguments supporting partisan gerrymandering. Since that time until today, these arguments have been criticized by thoughtful jurists and legal scholars. “[P]artisan
gerrymanders,” Justice Kagan has observed, “deprive[] citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.” Rucho v. Common Cause, 588 U.S. 684, 721-22 (2019) (Kagan, J., joined by Ginsburg, Breyer, and Sotomayor, JJ., dissenting).

Note that Kagan was “dissenting” there. As in “she lost.” In reality, Rucho held — and Callais removed all doubt — that this is the opposite of the law of the land. Justice D. Arthur Kelsey does not mention Callais at all in this opinion. One might think that ChatGPT or whatever he used for his legal research hadn’t been updated yet, but the opinion is all around bereft of legal authority, preferring to traffic in hypotheticals and linguistic gamesplaying.

Kagan was correct, for what it’s worth. Partisan gerrymandering is corrosive, but given that the Supreme Court resoundingly rejected that opinion, the majority’s hand-wringing over the moral importance of standing against gerrymandering reads like a child pleading “but Timmy’s parents don’t make him go to bed until 9.” Which, is why the Virginia court soon makes a hard pivot from “isn’t Justice Kagan so wise?” to the state constitution. They need to get as far away from SCOTUS caselaw as they can.

In tossing the results of the election, the majority asserts that the constitutional amendment authorizing the new maps wasn’t properly on the ballot to begin with. Article XII, Section 1 of the Virginia Constitution sets up an idiosyncratic, two-step process for putting an amendment on a ballot:

Any amendment or amendments to this Constitution may be proposed in the Senate or House of Delegates, and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall be . . . referred to the General Assembly at its first regular session held after the next general election of members of the House of Delegates.

Essentially, an amendment only goes to the public if a state legislature is so confident in it that it passes two different sessions.

Did the Virginia legislature follow this procedure? Absolutely. The 2025 legislature proposed and passed the amendment proposal. The new legislature, taking office in 2026, voted for it too. But neither facts, nor text, nor gloom of night will deter bad faith actors from their appointed task.

In this case, voting in the general election for the House of Delegates began on September 19, 2025, and ended on Election Day, November 4, 2025. The General Assembly voted for the first time to propose the constitutional amendment to the electorate on October 31, By that date, 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 U.S. Supreme Court just redrew maps in the middle of an election. Virginia is quibbling that the first amendment vote happened after early voting started, without undermining the fact that a second session still had to vote for it. But Virginia’s robed GOP activists embraced the Opposite Day role, jettisoning several years worth of Republican messaging that “early voting is fake” and “elections mean election day!” to pronounce with a smirk that as soon as early voting begins, nothing a legislature does can be “before the election.”

In other words, under the Commonwealth’s view, the four-day period (which included a weekend) was the “intervening” period during which Virginia voters could find out what the proposed amendment actually said, whether their preferred candidate supported or opposed it, and whether they wanted to use their vote to express a view on the subject.

Well, technically, under the Commonwealth’s view the amendment was passed by two different legislatures — one that proposed it, and another whose members were elected afterward — which is all the state constitution provides. So much for textualism! Instead, the majority grasps at historical hearsay that the purpose of the rule is to allow voters to make a single-issue vote for their next representative based on the possibility of a ballot measure. The reasoning strains credulity, and if it didn’t strain your credulity, the majority — inexplicably — inserts an amateur play to drive home how stupid this is:

With that perspective, imagine one of the over one million Virginians who had voted in person before Election Day in 2025 walking into a polling place. The voter says to the officer of election, “I am here to vote in the election.” The officer of election responds, “we are not conducting an election here.” “But that’s why I am here,” the voter replies. “Maybe so, but let me explain,” the officer of election insists, “you can vote in the election, but we are not conducting an election today. Elections are only conducted on Election Day.”

No, any of the million Virginians who voted early would say, “right, I’m not an idiot, I understand I’m just casting a ballot that will be counted on election day, do I look like a state supreme court justice or something?”

Not for nothing, if we’re digging into the rationale behind the state constitution, the fact that amendments require a statewide vote is there because hinging everything on voters making a single-issue, indirect vote is farcical.

There’s an extended drag about how, historically, colonial era elections took place over time, counted ballots well after “election day,” and employed ballot farmers — an armchair historian account that must have been bittersweet for Sam Alito.

The date certain in Article IV, Section 3, when considered in the context of the provision and the verb phrase “shall be elected,” describes the time of the final act in an election. In legal argot as well as common speech, a wedding can last for hours, but the bride and groom are not lawfully wed until the officiant declares them so at the end of it. Equally so here. A general election can take place over many days, but it culminates and ends on Election Day. The successful candidate “shall be” lawfully deemed “elected” no earlier than Election Day, the last day of voting in the election.

Except, if someone cared about having a legitimate baby, no matter how long that wedding lasts, all that matters is the baby popping out at the couple’s “first regular session held after they say, ‘I do.’” The constitutional text is straightforward — the amendment is referred to the legislature “at its first regular session held after the next general election of members.” It was passed before the next set of members were elected. That’s the “I do” moment. Honestly, this opinion would be harder to mock if the majority could stop including these terrible asides.

Though, maybe the right conclusion is the simplest one offered by the three dissenting justices:

By focusing on the legislative history, dictionary definitions, and how legal scholars might interpret the term “election,” the majority fails to apply the most basic tenet of interpretation of constitutional provisions: looking to the language of the constitution itself.

Thirty pages of distraction instead of just reading the plain text. Unswerving adherence to text is not a great judicial philosophy. But generally speaking, it’s best to check the text first before throwing a kitchen sink of excuses into the mix.

Especially when the only excuse that matters is the one the majority won’t say out loud.

(Read the full opinions on the next page…)

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.

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