In a rare Friday opinion and by a split decision, the Supreme Court of Virginia overturns the vote allowing the General Assembly to redraw Virginia congressional maps.
MAJORITY OPINION
The case comes from the General Assembly’s attempt to authorize congressional redistricting outside the normal decennial-census cycle in response to other states doing the same. In February 2026, the General Assembly enacted a contingent new map that would shift Virginia’s congressional delegation from a 6-5 split to an expected 10-1 split. The proposed amendment was submitted to voters on March 6, 2026, the first day of early voting, and passed on April 21 by a margin of approximately 3.38 percentage points.
Article XII, Section 1 of the Virginia Constitution requires that a proposed amendment be agreed to at one legislative session, then referred to the General Assembly at its first regular session after the next general election of House of Delegates members, with voters then ratifying or rejecting the proposal. The purpose of this intervening-election requirement is deliberate: it slows the process to prevent hasty constitutional change, and it gives voters the opportunity—between the two legislative votes—to elect delegates who support or oppose the proposal.
The Commonwealth argued that the “general election” under Article XII, Section 1 means only Election Day itself, which is a single Tuesday in November. Under that theory, the legislature’s October 31, 2025 vote to propose the amendment came four days before Election Day (November 4), and therefore an intervening election did occur. The majority squarely rejected this argument.
The majority extensively analyzed the word “election” across legal dictionaries, historical sources, and case law, concluding that “election” has always referred to the combined actions of voters casting ballots and election officials receiving those votes and closing the polls on the final day, not just to Election Day in isolation. The majority noted that multi-day voting has deep historical roots in Virginia, stretching back to colonial days when sheriffs canvassed plantations to collect votes over multiple days. Modern early voting is similar. When Virginia law authorizes early in-person voting beginning 45 days before Election Day, those votes are cast in the election. Election Day is simply the boundary marker as the last day of the election, not the entirety of it.
The majority also drew a careful textual distinction between the noun phrase “general election” in Article XII, Section 1 and the verb phrase “shall be elected” in Article IV, Section 3 (which fixes the day delegates are formally deemed elected as the Tuesday after the first Monday in November). The majority found that these are materially different terms carrying materially different meanings. The latter refers to the culminating legal act of declaring a winner; the former encompasses the entire voting process. A wedding can last for hours, the Court observed, but the couple is not wed until the officiant declares it so at the end.
The majority also rejected several subsidiary arguments. It dismissed the Commonwealth’s reliance on Code § 24.2-101, which defines “general election” as occurring “on the Tuesday after the first Monday in November,” noting that the statute’s own preamble states its definitions do not apply when “context requires a different meaning,” and that a self-limiting statutory definition cannot override settled constitutional meaning. It rejected any suggestion that Article II, Section 4’s grant of authority to the General Assembly to regulate elections permitted the legislature to redefine a constitutional term by statute. And it addressed and rejected the dissent’s concerns about the implications of a multi-day election definition for other constitutional provisions, including the Article II, Section 9 voter-compulsion exemption and Article IV, Section 4’s age qualification for delegates.
And so, the majority held that the General Assembly cast its first vote in favor of the proposed amendment after the 2025 general election had already begun, since over 1.3 million Virginians had already voted by that date. There was therefore no intervening “general election” between the two legislative votes as required by Article XII, Section 1. This procedural violation irreparably tainted the referendum and rendered the resulting vote null and void. The nonpartisan congressional district maps drawn by the Court in 2021 under Article II, Section 6-A accordingly remain the governing maps for the 2026 congressional elections.
DISSENT
Chief Justice Powell, joined by Justices Mann and Fulton, dissented on the grounds that the majority improperly broadened the meaning of “election” as used in the Virginia Constitution to encompass the early voting period. In the dissent’s view, both Virginia law and federal law define an election as occurring on a single day—Election Day—and the majority’s contrary interpretation conflicts with the Virginia Constitution read as a whole, with the General Assembly’s exercise of its express constitutional authority to regulate elections, and with federal election law.
The dissent’s central argument was that the majority bypassed the most fundamental canon of constitutional interpretation: looking to the constitution’s own text. Article II, Section 4 expressly grants the General Assembly the authority to “regulate the time, place, manner, conduct, and administration” of elections. The General Assembly exercised that authority through Title 24.2 of the Code of Virginia, and specifically through Code § 24.2-101, which defines a “general election” as “an election held in the Commonwealth on the Tuesday after the first Monday in November.” The dissent argued that the simple preposition “on”—as opposed to a phrase like “ending on”—unambiguously establishes that the legislature intended elections to occur on a single day, not over a multi-day period.
The dissent further noted that this statutory definition was enacted in 1970 contemporaneously with the drafting of the 1971 Virginia Constitution, and that contemporaneous legislative construction of a constitutional provision is entitled to significant interpretive weight under Virginia precedent. Rather than superseding the constitutional text, the dissent argued, the statutory definition properly informs the Court’s understanding of what the framers meant by “general election” in Article XII, Section 1.
The dissent also pointed to Code § 24.2-701.1(A), which provides that early voting begins on the forty-fifth day “prior to any election.” Because “prior” means preceding in time, the dissent reasoned that the plain language of the early voting statute treats early voting as a period that occurs before the election, not as part of it. The majority’s contrary interpretation, the dissent argued, creates a logical paradox: if an election begins with early voting, and early voting must precede an election by forty-five days, the result is an infinite loop with no discernible beginning. The dissent noted that the majority’s framework also fails to account for the two-day gap between the close of early voting on the Saturday before Election Day and Election Day itself, which is a period during which no votes can be cast, and which the majority’s definition leaves in an undefined state.
A significant portion of the dissent focused on what it characterized as the majority’s failure to read the Constitution as a harmonious whole. The dissent invoked the well-established Virginia principle that the same word used in different parts of the same constitution should be presumed to carry the same meaning, and that all provisions should be construed together to give effect to each. On that basis, the dissent pointed to several provisions it argued were irreconcilable with the majority’s multi-day election definition.
The dissent argued that the majority’s definition of election also conflicts with federal law. The U.S. Supreme Court in Foster v. Love recognized that federal statutes mandate holding all elections for Congress and the Presidency on a single day throughout the nation. Every federal circuit court applying the “combined action” theory of Foster has concluded that early voting is not part of the election because, during early voting, only voters are acting; election officials cannot make a final selection of an officeholder until Election Day itself. By extending the definition of election to include early voting, the dissent contended, the majority goes beyond what Foster permits and risks placing Virginia in conflict with federal election law as applied to congressional races.
Because the dissent would have reversed the circuit court’s ruling on the intervening-election issue, it also briefly addressed the two other grounds on which the circuit court had ruled against the Commonwealth. First, the dissent would have reversed the circuit court’s finding that the proposed amendment’s initial passage was void because the Special Session violated its own procedural resolution, HJR 6001. The dissent reasoned that compliance with internal legislative procedures is committed entirely to the General Assembly under the separation of powers, and that courts may not second-guess such determinations. The dissent further argued that even on the merits the circuit court misread HJR 6001, which expressly exempted procedural resolutions from its unanimity requirement, meaning that subsequent resolutions expanding the Special Session’s scope required no unanimous consent. Second, the dissent would have reversed the circuit court’s holding that the failure to comply with Code § 30-13’s posting requirement invalidated the amendment’s initial passage, reasoning that posting by circuit court clerks is a peripheral act by third-party bystanders that does not directly bear on ratification, and that Article XII, Section 1 imposes no publication duty until after the General Assembly has completed its second vote.
In the dissent’s view, the circuit court erred on all three grounds, and the Court should have reversed its judgment and entered final judgment in favor of the Commonwealth. The dissent would have held that the November 4, 2025 Election Day constituted the relevant “general election” under Article XII, Section 1, that the General Assembly’s October 31 vote therefore preceded that election, and that the proposed constitutional amendment was lawfully advanced to the voters.
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