David J. Toscano

Faced with a potential Democratic wave this fall, Republican legislators across the nation continue their efforts to placate Donald Trump by adopting unprecedented mid-cycle gerrymanderings designed to protect their majority in Congress.

Emboldened by the U.S. Supreme Court’s evisceration of the Voting Rights Act in the Callais decision, Republicans just adopted new maps in Florida and Tennessee to target Democratic incumbents, including some of most senior African American representatives in the House. Thirteen states will have new congressional districts for 2026 midterms; South Carolina and Louisiana will likely join the list soon. The changes give Republicans more chances to preserve their House majority this fall.

Remember how we got here

When President Donald Trump and Republican leaders in Texas decided last year on their redistricting gambit, they ignited a political firestorm that threatens to destroy yet another political guardrail. North Carolina and Missouri followed Texas, passing new maps in fall, 2025. California then responded; in November, the state’s voters approved a constitutional amendment to counter the Republican actions.

In April 2026, Virginia voters also approved a change in its constitution to create new temporary districts, only to have the vote nullified by the state’s Supreme Court. Several other states, including Georgia, New York, Illinois, Maryland, and New Jersey, may alter their districts in 2027, depending on who wins their state legislative races.

This redistricting arms race may create some short-term winners, but the American public loses in the long run. In search of political power, the politicians are dividing the nation—state by state—into two separate nations.

Threading the needle in Virginia?

Virginia is no stranger to redistricting wars. In 2011, Republicans who then controlled state government, adopted new maps for congressional and state legislative districts that were dramatically partisan. At a time when Democrats were frequently prevailing in statewide races for Governor and U.S. Senate, artful map-drawing by Republicans produced a 67-33 GOP majority in the state’s House of Delegates. The plans were finally struck down as unconstitutional racial gerrymanders, something unlikely today because of the Callais decision. After the courts drew new maps, Democrats gained the majority in the Virginia legislature.

As Texas was drawing its new map, Virginia Democrats debated a response. They understood that the challenge would be more difficult than California’s. Changes in Virginia’s redistricting rules also require a constitutional amendment approved by the electorate. But California lawmakers need only pass a measure once before placing it on the ballot for a popular vote. Virginia requires passage in two successive legislative sessions separated by an intervening statewide election. Only then can voters consider the measure. If they approve, the amendment is ratified and becomes part of the Virginia Constitution.

Democrats would need to move fast to pass an amendment before the November 2025 election. The regular session of the legislature had adjourned in February, months before Texas acted, and would not reconvene until January 2026—two months after the fall statewide election.

But Democrats thought they had a work-around. The legislature remained in a “special session” that had been called primarily to pass a budget. Democrats planned to call legislators back to Richmond to pass the amendment before election day. The intervening election would then occur, and the legislature could adopt the measure a second time in January, enough time to have it legally placed on the ballot for a special election in April. Nonetheless, the path was not easy.

Unfortunately, legislators did not return to pass the amendment resolution until late October, a month after early voting in the Commonwealth had begun. During debate, Republicans and their Attorney General asserted that the Democrats had missed the deadline, arguing that the election had begun on September 19, the first day of “early voting.” Democrats countered that “election” under Virginia law means “election day.” The amendment passed on party lines on October 31, 2025, only 5 days before the statewide governor’s election, and 40 days after “early voting” had commenced. The timing would prove fatal.

Court nullification

The referendum campaign was bitter and costly. Almost $100 million was spent during the election, much from out-of-state “dark money” PACs. Republicans were united in their opposition, but the campaign against the amendment also gained votes from some Virginians who had supported a constitutional amendment in 2020 that had established a nonpartisan redistricting commission.

Almost 3.1 million citizens participated, a record number for a constitutional referendum. When the votes were counted on April 21, 2026, the amendment barely prevailed, gaining 1.6 million votes and 51.7% of the total vote.

The Democrats victory was short-lived. On May 8, the Virginia Supreme Court, in a 4-3 decision, invalidated the referendum, finding that the General Assembly failed to pass the amendment before an intervening election, not early enough to satisfy constitutional requirements. On May 15, the U.S. Supreme Court declined Democratic lawmakers’ request to intervene, effectively killing the amendment.

Those who respect the rule of law must recognize the court’s authority. But accepting a decision does not require embracing its reasoning — or ignoring its consequences.

The Virginia Supreme Court — more political than many assume

Virginia is one of only two states (the other is South Carolina) where supreme court judges are selected by the legislature. Advocates of this system argue that it shields judges from the pressures of campaigning to gain a seat or retain one, a dynamic that shapes judicial politics elsewhere.

Yet the process itself is far from apolitical. Campaigns for these seats are largely invisible to the public, unfolding instead through private negotiations and legislative maneuvering as lawmakers work to secure the selection of their preferred candidates. Public participation is generally limited to hearings before legislative judicial committees, where nominees are questioned and routinely pledge to “follow the law,” defer to legislative statutes, protect the constitution, and avoid political controversy. Judges are almost always chosen by the party controlling the General Assembly.

While recent Virginia’s Supreme Court decisions have not been viewed as political, there are exceptions. In 2016, for example, shortly after Democratic Gov. Terry McAuliffe, relying on Article V, Section 12 of our Constitution, restored voting rights, en masse, to more than 200,000 Virginians who had completed felony sentences. Republicans sued, and the Court decided that the governor had exceeded his authority. Undaunted, McAuliffe restored those rights individually, one signature at a time.

Today’s Court is arguably more conservative than the one that decided the McAuliffe case. Of the four justices who voted to strike down the referendum, three — Arthur Kelsey, Stephen McCullough, and Teresa Chafin — were chosen when Republicans controlled both chambers of the General Assembly.

Public records show that all four either voted exclusively in GOP primaries in the last 15 years or have given money to Republicans before becoming judges. McCullough is a particularly interesting case, having been appointed after GOP lawmakers denied the seat to the well-respected Hon. Jane Roush, mainly because she was supported by McAuliffe.

Unless they retire, several of these judges will soon face reappointment by the General Assembly. Legislators have not rejected a justice seeking reappointment since 1895, but we are living in a different political world.

Gambles all around

While any decision on the referendum by the Virginia’s Supreme Court was likely to be criticized, its timing and decision are troubling. Since the referendum process was clear from the beginning of the lawsuit was filed to overturn it in March, why wait until after the vote, and the considerable expenditure of energy and resources on all sides?

The court’s ruling — issued weeks after Virginians had already voted — has fueled concerns that the court was improvising the law to obtain its desired result, the defeat of the amendment. Don’t forget that Virginia’s supreme court drew the maps in the most recent redistricting, after the redistricting commission deadlocked. The court’s ruling included the opinions of experts that these maps were “fair,” and that the referendum would drastically change them.

The court’s opinion asserted that the judges considered “the process, not the outcome.” But if the issue was procedural all along, why not rule earlier, and save everyone considerable resources?

The 4-3 majority found its justification for waiting in a century-old case, Scott v. James, which held that these decisions must await “the completion of the proceedings,” that is, the vote. Under this logic, the court should have dismissed the initial petition opposing the referendum as premature, as it was filed before the measure was placed on the ballot. Alternatively, since the constitutional infirmity was with the first General Assembly vote, the court could have ruled the defect prevents the measure from even being considered.

A cynic could argue that in delaying, the judges were gambling that the referendum would be defeated, and the court could avoid a decision. But they were not the only gamblers in this game. In early hearings, Democrats also argued that the court should delay a ruling until after the vote, perhaps calculating that a positive result at the polls would make it less likely that the court would overturn “the will of the people.”

The court’s decision turned on the meaning of the word “election,” a term not explicitly defined in the Virginia Constitution. The court rejected that Democrats’ reliance on Article IV, Section 3 of the Virginia Constitution, which states that elections for the House of Delegates occur on “the Tuesday succeeding the first Monday in November.” Instead, the one-vote majority found that the intervening election included early voting, which commenced days before the Assembly acted, thereby invalidating the amendment process. The narrow decision means that the congressional districts will remain as they are—at least for 2026.

What’s next: Democrats may still gain Congressional seats

Even before the proposed maps in Virginia were introduced, Democrats believed they had realistic opportunities to defeat Republican incumbents in the 1st and 2nd congressional districts, both carried by Gov. Abigail Spanberger in 2025. They also saw an opening in the 5th District, where former Congressman Tom Perriello is attempting a political comeback. And red maps still face lawsuits in some states, including Florida and Missouri, where citizens have gathered enough signatures to challenge the map by a popular vote. In Florida and Texas, some believe that the Republican maps may give Democrats more opportunities than the GOP desires.

The collapse of the amendment in Virginia makes recapturing the House this fall more difficult. But elections are still decided at the ballot box, and Trump’s favorables are cratering, even in the reddest states. Ultimately, the most effective response to partisan manipulation remains free and fair elections. November will reveal whether Virginians — and Americans more broadly — are prepared to restore meaningful checks and balances to a political system increasingly dominated by one man: Donald Trump.

David J. Toscano, a former Virginia House Minority Leader, publishes the Fights of Our Lives blog on Substack. This column is republished with his permission. A condensed version was published in Virginia Mercury.