KEN CUCCINELLI: Virginia voted yes, will the courts vote the same way?
Virginia’s Constitution has rules about how it may be changed, and those rules exist to prevent the kind of rushed, extreme rewrite that occurred here
{{#rendered}} {{/rendered}}On April 21, Virginia voters narrowly approved a referendum to let the Democrat-controlled General Assembly redraw the state’s congressional map, replacing districts drawn by the bipartisan commission voters themselves created in 2020 by a huge 2 to 1 margin. The margin on this week’s referendum was slim — roughly 51.5 percent to 48.5 percent. But the vote, dramatic as it was, is not the final chapter. Three lawsuits, raising four distinct (state) constitutional challenges, are already in courts. And the institution that will ultimately decide whether this referendum stands is not the United States Supreme Court. It is the Supreme Court of Virginia.
All of the challenges here are rooted entirely in the Virginia Constitution — specifically, in whether the General Assembly followed Virginia’s own rules for amending its Constitution. This fight begins and ends in Richmond.
The first two challenges, already before the Virginia Supreme Court, attack the process by which the amendment received its first passage on October 31, 2025. Virginia’s Constitution, in Article XII, Section 1, prescribes a specific two-step process for amendments. A proposed amendment must first pass both chambers of the General Assembly, then there must be an intervening election. After that intervening election, and a second passage at the subsequent session, the amendment goes before voters.
{{#rendered}} {{/rendered}}The challengers argue that two violations took place regarding the first passage of the amendment. The first passage did not occur during a proper session of the General Assembly. It took place during a special session originally convened by then-Governor Youngkin in 2024 to address a budget dispute. The "Yes" men argue that session was technically never adjourned — it was kept open for nearly two years — and Democrats used it to pass the redistricting amendment. Opponents contend this exceeded the scope of the special session’s call, which was limited to budget matters. Expanding it to encompass a constitutional amendment on redistricting would have required a two-thirds vote that never occurred. A Tazewell County circuit judge agreed, declaring the action "void, ab initio" — void from the beginning — under Article IV, Section 6, and Article V, Section 5, of the Virginia Constitution.
The second procedural challenge goes to the heart of Article XII’s timing requirements. Because first passage occurred during the 2025 election rather than before a general election, challengers argue there was no intervening election between the first and second passages. The entire point of the intervening-election requirement is to give voters a voice — a chance to weigh in on the legislators who will cast the decisive second vote. That democratic safeguard, opponents say, was circumvented.
{{#rendered}} {{/rendered}}At the time of first passage on October 31, 2025, over one million Virginians had already voted in the 2025 election — the same election the "Yes" men want to legally treat as the required ‘intervening election.’
A third challenge was heard today in Tazewell County Circuit Court. It involves Article XII, Section 1’s mandate that a proposed amendment may not be submitted to voters "sooner than ninety days after final passage by the General Assembly." The question is straightforward: did ninety days actually elapse between the second passage and the commencement of voting on the referendum? Challengers say it did not, and that this is not a technicality — it is a bright-line constitutional requirement.
Second passage occurred on January 19, 2026. Open voting in Virginia’s 45-day election began on March 6, 2026. You do the math. The last day to vote was Tuesday, April 21st, so the "Yes" men will argue that what counts is that 90 days elapsed between second passage and election day — April 21st. The Judge in Tazewell ruled today that the 90-day requirement was not complied with, and so, as of this writing, he has enjoined the certification of the referendum. Like all other matters, this will ultimately be decided by the Virginia Supreme Court.
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The fourth challenge takes aim at the proposed map itself. In Richmond Circuit Court a hearing was held on Monday and a ruling is pending. Challengers argue that the proposed congressional districts violate Article II, Section 6, of the Virginia Constitution, which requires that "every electoral district shall be composed of contiguous and compact territory." The compactness challenge is independent of the procedural claims—even if the amendment survives the Article XII challenges, the maps must still pass constitutional muster on their own terms. And these may be the most extremely gerrymandered maps in modern Virginia history.
So, what’s next? Based on ancient Virginia precedent, the Virginia Supreme Court allowed the vote to proceed but made clear it would take up the constitutional questions afterward. Briefs have been filed or are due shortly. The Tazewell and Richmond circuit court rulings will surely be appealed, funneling everything upward to the same seven justices in Richmond.
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If the Virginia Supreme Court strikes down the amendment on any of the three procedural grounds, the referendum result is nullified. The bipartisan commission’s maps would remain in effect for 2026 and beyond. If the court upholds the amendment process but strikes down the maps on compactness grounds, the General Assembly would presumably need to draw new, less extreme maps. And if the court upholds everything, the new Democratic-drawn districts would reshape Virginia’s congressional delegation heading into the 2026 midterms.
Virginia’s Constitution has rules about how it may be changed, and those rules exist to prevent the kind of rushed, extreme rewrite that occurred here. Now it is up to the Virginia Supreme Court to decide whether the process that produced this referendum honored those rules — or broke them. Stay tuned!
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