If the judicial branch was looking for any tips on how to tank its credibility among the American people, the Supreme Court of Virginia (SCOVA) is here to help.
In an act of complete cowardice, the commonwealth’s highest court punted consideration of a likely illegal Democrat-backed redistricting amendment on Friday until after a vote on the measure has been held this April. As The Federalist’s Breccan Thies reported, if passed by voters, this referendum would sidestep the state’s redistricting commission and “gerrymander the commonwealth’s U.S. House districts from five Republicans and six Democrats to one Republican and 10 Democrats” ahead of the 2026 midterms.
The reason SCOVA’s ruling is so problematic is because all signs point to the process that General Assembly Democrats undertook to get the amendment on the ballot as being completely unlawful.
Under the Virginia Constitution, proposed amendments must first be passed by both chambers of the General Assembly in two consecutive legislative sessions with an intervening election of the House of Delegates in between. Should they receive such approval, these proposals are then sent to voters for consideration “not sooner than ninety days after final passage by the General Assembly,” and must receive majority support from the electorate to ratify the state’s founding document.
The Democrat-run General Assembly first passed the amendment during a special session in late October 2025 and again last month, with the hopes of getting voters to approve it in April so the new map could be used in the fall midterms.
Where things get legally suspect is the timetable by which Virginia Democrats approved their redistricting proposal. As previously noted, the Virginia Constitution requires that there be an intervening election of the House of Delegates in between the General Assembly’s first and second passage of the constitutional amendment in question.
The argument from Virginia Democrats, as it seems, is that the Assembly’s passage of the proposal before the state’s Nov. 4, 2025, election constituted the legislature’s first approval of the measure, and is therefore, legally valid. However, as noted by Tazewell County Circuit Judge Jack Hurley in his late January decision on the referendum, those claims don’t pass the smell test because the commonwealth’s election actually commenced when voters started casting ballots during early voting, which began on Sept. 19, 2025.
“There is no rational conclusion except that the ELECTION began on the first day of voting (September 19, 2025) and ended on November 4, 2025. Therefore, the Court FINDS that following the October 31, 2025 vote and passage of House Joint Resolution 6007 there HAS NOT BEEN an ensuing election of the House of Delegates, and such ensuing general election CANNOT occur until 2027,” Hurley wrote. “Thus, the action of the General Assembly during its Regular Session 2026 CANNOT meet the second passage required of Article XII, Section 1 of the Virginia Constitution, which second passage must occur before the same can be submitted to the voters of Virginia for adoption.”
Hurley additionally found that Democrats did not comply with state law when they failed to give Virginians adequate time to weigh in on the proposed amendment before the next general election. Several of the judge’s determinations were previously echoed by former Virginia Attorney General Jason Miyares, who similarly found the redistricting referendum to be “unconstitutional” prior to his departure from office last month.
By every indication, Virginia Democrats’ gerrymandering gambit violates the state’s constitution and existing law. But rather than say so now, the Virginia Supreme Court has seemingly decided to play politics instead by seeing how the amendment is received by voters.
If the amendment is defeated, then the case will effectively be declared moot. But if voters approve the proposal, then SCOVA will either have to uphold the referendum or declare it unconstitutional and void — something the justices are unlikely to do right after the voters have weighed in.
Giving deference to the will of the people may seem like an admirable cause, especially in an era of lower court judicial activism that often overlooks separation of powers and the proper role of the judiciary. (Just this past weekend, for example, a district judge tried to dictate to President Trump what historical information must be included at a Pennsylvania-based national park.)
But in cases such as this, where there are clear violations of the law, the Virginia Supreme Court has an obligation to step in and uphold the state’s founding document — no matter how politically unpopular it may be.
The moment courts abandon proper jurisprudence to cater to public opinion is when Americans lose faith in the judiciary to operate as a trustworthy branch of government. As Supreme Court Justice Samuel Alito recently said, judges “are not supposed to do what is popular, [they’re] supposed to do what is right.”
It’s entirely possible SCOVA could surprise everyone and deem Democrats’ redistricting referendum as unconstitutional in the end. But given its apparent willingness to allow the politics of the moment to dictate its recent actions, Americans shouldn’t hold their collective breath.
Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He is a co-recipient of the 2025 Dao Prize for Excellence in Investigative Journalism. His work has been featured in numerous outlets, including RealClearPolitics and RealClearHealth. Follow him on Twitter @ShawnFleetwood
