Mid-decade redistricting · Virginia · Pending
The Virginia Supreme Court is sitting on the merits of a Democratic mid-decade power grab the voters narrowly approved 50.7-49.3 in a hastily-scheduled April 21 special election. Republicans have four independent procedural grounds to throw it out. They need to win on any one.
Whether any of this is constitutionally fatal is a different question from whether it stinks. Both, in our editorial view, are on the table.
Special session called for a budget dispute. Never formally adjourned. Procedurally kept open into late 2025.
Majority Leader Herring re-opens the dormant session and wedges in a completely different redistricting amendment.
First passage. Second passage. The "intervening election" that was supposed to sit between them started six weeks early.
Voter approval on April 21. Two days later Judge Hurley rules the entire result "ineffective." The state cannot certify.
Republican plaintiffs need four votes to win on any one of four grounds. The path of least resistance runs through Argument 2 — special-session scope — with McCullough as the most likely author of a narrow controlling opinion. Hover any chair for the read.
The arguments are conceptually independent. They rest on different constitutional provisions. A justice who rejects Argument 1 isn't committed to rejecting 2, 3, or 4 — and that's the structural fact that makes this case real.
The 2024 special session was convened to settle a budget dispute. It was reopened more than a year later for a constitutional amendment that nobody contemplated when the session was originally called. Constitutional limits on special sessions exist precisely to prevent that bait-and-switch.
The Constitution requires "an election" between the two GA passages. Early voting for the November 4, 2025 election began September 19 — six weeks before the October 31 first passage. Hundreds of thousands of votes were cast in the supposed intervening election before the GA had taken the first vote that election was supposed to provide a check on.
Virginia constitutional amendment procedure requires notice of the special election be properly advertised by all of the state's circuit court clerks. Republicans argue this requirement was not satisfied uniformly across all circuits in the rushed timeline between January 16 second-passage and the April 21 referendum.
The ballot question asked whether the Constitution should be amended to "restore fairness" — language Judge Hurley found "flagrantly misleading." SCOVA expressly DECLINED to reach the merits in March, writing "It is the process, not the outcome, of this effort that we may ultimately have to address." The yes side prevailed, so the title argument is back on the table.
Every step pushed the boundary of the procedure as far as it could go. Three or four of those pushed boundaries are now live legal questions before the court.
The likely-vote reads below are informed analysis from public records, not inside information. They are most defensible for justices with deep records (Kelsey, McCullough, Powell, Mann) and least defensible for those with thin SCOVA records (Fulton).
№ 02 STRIKE The court's most explicit originalist. Author of the Vlaming lead majority. Reappointment vote is in eight months under a Democratic GA — and that political pricing is already baked into how he'll write here.
№ 03 STRIKE Cuccinelli's former Deputy AG for Civil Litigation. Argued the Cuccinelli-vs-UVA-climate-emails case for the Commonwealth. Joined Vlaming in full and joined Chafin's October 2025 contempt dissent. No reappointment exposure.
№ 01 STRIKE The keystone vote. Textualist scholar who wrote "A Vanishing Virginia Constitution?" — but split from the conservative wing on the October 2025 contempt case. If the bloc holds, he authors. If he defects, the strike fails.
№ 05 TOSS-UP The pivotal vote. Mild conservative with deep Tazewell County roots — Judge Hurley sits in her old circuit. Authored October 2025 contempt dissent. Mandatory retirement ~30 months from now: she has nothing to lose institutionally.
№ 04 UPHOLD Center-institutionalist. Concurred in result but rejected the textualist methodology in Vlaming. Her CJ tenure caps at four years under mandatory retirement. Built to hold the line on institutional deference.
№ 07 UPHOLD Newest justice. Formal investiture April 27 — same day as oral arguments. Elevated by the Democratic GA to replace Goodwyn (who concurred with Powell). His first major public act would be either ratifying or torching his patrons' signature legislative win.
№ 06 UPHOLD The cleanest Democratic-aligned vote on the court. Only true partial dissenter in Vlaming. His "as times change" framing is the antithesis of textualist reading on Argument 1.
The single biggest analytical risk in this brief is over-reading Vlaming as a 4-3 voting bloc. It wasn't — outcome was effectively unanimous, methodology was 4-2-1. The only clean 4-3 outcome split available from the current court is the October 2025 contempt case, in which the conservative wing fractured: Kelsey, Russell, and Chafin dissented; McCullough went with the Powell-Goodwyn-Mann majority. That is the data point that keeps me from going higher than 60.
These are subjective probability estimates, not actuarial. The single biggest source of uncertainty is McCullough. Aggregate strike across all scenarios: ~60%. Aggregate uphold: ~35%. Punt: ~5%.
Conservative wing holds. McCullough authors a narrow special-session-scope opinion. Powell, Mann, Fulton dissent. Pre-existing commission map is restored.
McCullough or Chafin defects. Kelsey writes a sharp dissent joined by the two non-defecting conservatives. Mid-decade map is used in 2026, 2028, 2030.
Each conservative writes separately to flag preferred grounds. No single controlling rationale. Lower courts left to sort precedent.
Wing holds AND writes a Vlaming-style maximalist textualist opinion redefining "election." Less likely than A — requires McCullough to sign sweeping language.
Both McCullough AND Chafin defect on 1912-line grounds. Russell writes a textualist dissent joined by Kelsey. Cleanest "court upholds the will of the voters" outcome.
Court declines to reach the procedural-passage arguments and strikes only on the misleading-language ground. Plaintiffs win the case, lose the broader fight.
Implausible but not zero. Would require Powell or Fulton to defect — most plausibly on the special-session-scope theory.
Court avoids merits — possibly remanding for fact-finding or punting on standing. Filing-deadline pressure cuts hard against this.
Virginia is one of only two states where the legislature elects supreme court justices. The reappointment math actually pushes conservatives slightly TOWARD striking, not away.
| Justice | Term ends | Mand. retire | Decided by | Pressure |
|---|---|---|---|---|
| Kelsey | Jan 31, 2027 | 2034 | Current Dem-majority GA · 2026 short session | Maximum |
| McCullough | Mar 2, 2028 | ~2041 | GA seated after Nov 2027 — likely still Dem | High |
| Powell | Jul 31, 2035 | Jan 2030 | N/A — retires before reappointment | None |
| Chafin | Aug 31, 2031 | Oct 2028 | N/A — retires before reappointment | None |
| Russell | Jun 30, 2034 | ~2043 | Far enough out | None |
| Mann | Jul 31, 2034 | mid-late 2030s | Far enough out | None |
| Fulton | Dec 31, 2037 | 2031 | N/A — retires before reappointment | None |
No Virginia justice has been denied reappointment for partisan reasons since 1883. External pressure on Democrats not to retaliate is high — breaking the streak for Kelsey, a respected jurist with no ethical complaints, would invite legitimate accusations of court-packing. Internal incentive for Kelsey to vote his conscience is also high. If they're going to retaliate, they're going to retaliate. He may as well write the opinion he believes is correct.
The textualist methodology of Vlaming pushes the conservative wing toward strike. The 1912 line of institutional-deference cases pushes them toward uphold. The case turns on which gravity wins.
Vlaming v. West Point School Board (302 Va. 504, 2023) was effectively unanimous on outcome but split 4-2-1 on methodology: Kelsey wrote the lead majority joined by McCullough, Chafin, and Russell on a Madisonian textualist methodology; Powell and Goodwyn concurred in result on strict-scrutiny grounds; Mann partially dissented.
What it shows: Kelsey, McCullough, Chafin, and Russell can hold together on a textualist methodology when the constitutional text supports it. The Republican arguments here are textualist — they ask the court to read constitutional procedural requirements according to their structural purpose, not their narrowest technical text.
What it doesn't show: a clean 4-3 voting bloc. Vlaming was an individual-rights case where ruling for the plaintiff felt principled and bounded. Scott v. McDougle nullifies the express will of 1.27 million voters and reshapes federal congressional representation for three election cycles. The institutional cost is dramatically higher.
The 1912 cases counsel: the court does not intervene in the General Assembly's legislative process before laws are enacted; voters in a referendum function in a quasi-legislative role; the proper forum to challenge a referendum-enacted law is a substantive challenge to its operation, not a process challenge to how it got on the ballot.
This doctrine is bad for Republican plaintiffs. It is the strongest argument for an upholding 1912-style opinion that says the petitioners' grievances about pre-passage early voting may be valid concerns, but the proper remedy is political — not the invalidation of an election that has already been held and approved by 1.27 million voters.
If McCullough is going to defect from the conservative wing, this is the doctrine he will use as the off-ramp. But Argument 2 (special-session scope) gives the court a way to distinguish 1912 if it wants to: 1912 is about not pre-empting the GA's lawmaking work, not about insulating it from accountability when it violates explicit constitutional limits on HOW it conducts that work.
Six known unknowns the model doesn't fully price.
An unnamed justice's wife died over the weekend before oral argument. Justice was present. Has not been reported as triggering recusal but may affect deliberation timing.
Both sides have institutional incentive to rule before May 25 candidate filing. A ruling that beats the deadline is more likely to be a clean Argument 2 strike than a complex multi-ground analysis.
The RNC's parallel Tazewell-2 petition is consolidated but presents some additional federal-voting-rights timing theories. A ruling could resolve one without resolving the other.
Even if SCOVA upholds, RNC-side actors are expected to file federal Elections Clause litigation. That track is independent of who sits on the Virginia Supreme Court.
Fulton was formally invested the same day as oral argument. He heard argument on the day he formally took his seat — unusual and adds an increment of vote-signal uncertainty.
Judge Hurley has now ruled against the amendment three times — Jan 2026, Feb 2026, and the April 22 post-vote certification block. He was appointed by Republican Gov. McDonnell in 2012. The trial-court record is entirely his work.
Specific signals that, if they appear, will move our read.
We think the amendment gets thrown out, but we are honest about the deck: institutional deference doctrine, no Virginia precedent for nullifying a statewide referendum on procedural grounds, and the political instinct of justices not to overturn a 1.27-million-voter election all push uphill against the challenge. The reason we still land on strike is the asymmetry: Republicans need 1 of 4 grounds. Democrats need 4 of 4. That's the case.
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