The Supreme Court of Virginia ruled 4-3 in Scott v. McDougle that Democrats' mid-decade redistricting amendment was unconstitutional from the start, null and…
The bottom line
The Supreme Court of Virginia ruled 4-3 in Scott v. McDougle that Democrats’ mid-decade redistricting amendment was unconstitutional from the start, null and void, as if the April 21 referendum never happened. The 2020 bipartisan commission map governs the 2026 midterms. The eight-seat House swing Abigail Spanberger was counting on is gone.
This article is based on analysis from Bearing Freedom. Watch the original video. This is commentary, not legal advice.
I’ve been saying for months, when Polymarket had the “yes” side at 95% confidence, that this was winnable. People thought I was being contrarian or naive. I called a 4-3 overturn as the most likely outcome. That’s exactly what happened, and I’m not going to be modest about it.
The Virginia Supreme Court, in a 30-page majority opinion by Justice D. Arthur Kelsey joined by Justices McCullough, Russell, and Chafin, voided the April 21 redistricting referendum on Article XII, Section 1 grounds. The amendment was unconstitutional not because voters got it wrong, but because Democrats never had the authority to put it on the ballot in the first place.
The referendum is null and void. The 2021 bipartisan commission map, the one that currently gives Democrats a 6-5 edge in the congressional delegation, governs every race this November. The Democrats’ planned 10-1 gerrymander legally never happened.
What the court actually said
Kelsey’s opinion is worth reading directly. Article XII, Section 1 of the Virginia Constitution requires that any proposed amendment pass the General Assembly, then go to “the next regular session held after the next general election of the members of the House of Delegates.” The point is to give voters a chance to elect new lawmakers specifically knowing how those lawmakers intend to vote on the amendment.
“In this case,” Kelsey wrote, “the Commonwealth submitted a proposed constitutional amendment to Virginia voters in an unprecedented manner that violated the intervening-election requirement in Article XII, Section 1 of the Constitution of Virginia…This violation irreparably undermines the integrity of the resulting referendum vote and renders it null and void.”
Here’s the problem: the General Assembly passed the amendment on October 31, 2025. Early voting for the November 4 House of Delegates election had already started September 19. Over 1.3 million Virginians had cast ballots in that supposed “intervening election” before lawmakers even took the first vote the election was supposed to give the public a voice on. Kelsey put it plainly: the Commonwealth “ended up denying over 1.3 million Virginians their constitutional right to have a voice in the debate over whether their Constitution should be amended.”
That’s the governing constitutional ground. Not the ballot language. Not the special session question. The court ruled on the intervening-election timing requirement and that alone was enough to sink the whole thing.
The court also agreed with our side on the 90-day cooling-off period. Virginia law requires any proposed constitutional amendment to be publicly posted at every circuit clerk’s office for at least 90 days before voting begins. Early voting started March 6, fewer than 90 days after final passage. The amendment was on ballots in 46 days. Barely half the constitutional minimum.
The dissent from Justices Powell, Mann, and Fulton is what you’d expect from judges who put outcomes ahead of text. Upholding an amendment unconstitutionally placed on the ballot requires you to not care about process, about how constitutional changes are supposed to be made, about what the document actually says. You don’t arrive at that conclusion through good-faith legal reasoning.
What Democrats tried to pull
Virginia currently splits its 11-member congressional delegation 6-5 in Democrats’ favor. Under the proposed amendment, the General Assembly would have drawn new maps giving Democrats a 10-1 advantage, an eight-seat swing, achieved not through an election or a population shift but through a constitutional amendment that bypassed every procedural safeguard built into Article XII.
Democrats reopened a 2024 special session that had been convened for a budget dispute, a session that never formally adjourned, and used it more than a year later to ram through this redistricting amendment. Nobody who called that budget session contemplated using it for redistricting. Constitutional limits on special sessions exist for exactly this reason.
They spent somewhere around $100 million on the yes campaign. Close to 95% of the money, per reporting in The Washington Post and Cardinal News, flowed through 501(c)(4) nonprofits with no donor disclosure requirements. Dark money at a scale Virginia had never seen in a referendum fight. Justice for Democracy, on the no side, received millions through a group linked to Peter Thiel. My side was outspent 17 to 1 by the yes coalition.
Voters still almost said no. The final tally was 51.68% yes, 48.32% no, on about 3.1 million total ballots. After $100 million. With ballot language that Judge Hurley of the Tazewell County Circuit Court called “flagrantly misleading.”
The ballot language is worth sitting with, even though the court ruled on other grounds. Voters were not asked: “Do you want to change Virginia’s congressional delegation from 6-5 Democrat to 10-1 Democrat?” They were asked: “Should the Constitution of Virginia be amended to allow the General Assembly to temporarily adopt new congressional districts to restore fairness in the upcoming elections?” Restore fairness. Most voters had no idea what the actual map would look like. Hurley was right. It was flagrantly misleading. The court just didn’t need to get there.
Spanberger’s reaction
Governor Spanberger said she was “disappointed by the Supreme Court of Virginia’s ruling” and that voters would have “the final say” in November. House Speaker Don Scott called it a “Trump power grab,” which apparently means the Virginia Supreme Court ruling on Article XII, Section 1 of the state constitution is Donald Trump’s fault now. Senate Majority Leader Scott Surovell called the ruling “wrong on the law and unprecedented” and claimed the court had set aside the results of a statewide election for the first time in the Commonwealth’s 250-year history.
That framing is wrong and they know it. The court did not set aside an election. It ruled the referendum was never constitutionally authorized to appear before voters. There’s no valid election result to set aside when the underlying process violated the constitution from the start. Judge Hurley’s April 22 final order got the language exactly right: void ab initio. From the beginning. As if it never existed.
Jason Miyares, co-chair of the Virginians for Fair Maps coalition, said Virginians made clear in 2020 that voters should pick their representatives, not the other way around. The 2020 redistricting amendment created a bipartisan commission process for that exact reason, to take maps out of the hands of whichever party controlled the General Assembly. Democrats spent $100 million trying to undo that protection when it produced results they didn’t like.
Trump posted on Truth Social: “Huge win for the Republican Party, and America, in Virginia.” He’s right.
What November looks like now
The 2021 commission maps govern the 2026 midterms. Republicans have realistic shots at competitive seats that would have been buried under a 10-1 gerrymander. The eight-seat swing Democrats were counting on to pad their House majority doesn’t exist.
People keep treating this ruling like it was a political favor from sympathetic judges. It wasn’t. The Virginia constitution required an intervening election between the two General Assembly passages. Early voting had already started when the first passage happened. The constitution required 90 days of public posting. Democrats gave us 46. These aren’t close calls or ambiguous provisions where smart people can disagree. They’re just violations of the text.
What’s actually remarkable is that we only won 4-3. Three justices looked at a process that violated the constitution’s timing requirements in two distinct ways and concluded the referendum should stand anyway. Think about what that says.
The majority didn’t go there. The law held. Scott v. McDougle goes in the books as proof that when the facts are this clear, we can still win, even in a state where the political environment is working against us.
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