Virginia’s new election map gets thrown out in a dispute about what ‘election’ means

By Harmeet Kaur, CNN

(CNN) — Virginia’s Supreme Court dealt a blow to Democrats last week in the tit-for-tat redistricting war playing out ahead of the midterms.

In a 4-3 ruling, justices nullified a new congressional map that could have given the Democrats four additional seats in the House of Representatives. Their argument centered on whether state lawmakers had followed proper procedure when they put a constitutional amendment on the ballot to allow for the redistricting. The procedural question hinged on a linguistic technicality: What constitutes an “election”?

Traditionally — and in Virginia’s case, under the requirements of the state constitution — states have redrawn their congressional districts every 10 years, when a new census comes out and the 435 members of the House are reapportioned according to the states’ new shares of the population. But President Donald Trump, facing dismal polls and the risk of losing his party’s already tenuous House majority, has urged Republican-controlled states to launch an aggressive mid-decade round of redistricting, in the hopes of gerrymandering Democratic seats off the map.

Democratic-controlled states like California and Virginia have set out to draw gerrymanders of their own, aiming to wipe out Republican seats. Virginia voters, in a referendum last month, agreed to amend the state constitution to “temporarily adopt new congressional districts to restore fairness in the upcoming elections,” then to revert to the old rules after 2030.

That vote was meant to be the final part of the multistep process for amending the Virginia constitution. Before an amendment can go to a public referendum, it needs to be approved by the state legislature on two separate occasions: once before “the next general election,” and again after that election, under the newly chosen legislature.

The previous Virginia legislature passed the amendment on October 31, 2025. Election Day followed on November 4. The newly elected legislature then re-passed the amendment on January 16, 2026, to send it to the voters on April 21.

But four Virginia Supreme Court judges, three of them confirmed under Republican-controlled legislatures, ruled that the April voting was invalid. Although two successive legislatures had approved the amendment, the court argued that the first vote, back in October, had come too late — rather than voting before the election, as the constitutional timetable required, the legislature had voted after the 2025 general election was already happening.

In doing so, the court defined the “election” as having come into existence when early voting commenced on September 19, and not as merely taking place on Election Day. By the time Virginia’s General Assembly approved the amendment on October 31, the court argued, more than 1.3 million Virginians had already cast their ballots and therefore could not use their votes to express their approval or disapproval of the proposal.

“The definition of ‘election’ has always broadly denoted the ‘act of choosing,’” Justice D. Arthur Kelsey wrote in the majority opinion.

Citing early dictionaries from lexicographers Samuel Johnson and Noah Webster, as well as legal dictionaries such as Black’s Law Dictionary, Kelsey devoted several pages of the opinion to parsing the meaning of an “election.” He argued that average citizens who cast their ballots early would likely understand themselves to be voting in the election. “This lexical sense of the noun ‘election’ must be distinguished from the noun phrase ‘election day,’” he wrote.

He continued, “The metes and bounds of an election begin with the point of casting votes and end with the point of receiving votes and closing the polls on the last day of the election. Election Day is the boundary marker for the last act constituting an election.”

The minority took issue with this definition. An election, the justices on the losing side countered, is the event that happens on Election Day.

“By focusing on the legislative history, dictionary definitions, and how legal scholars might interpret the term ‘election,’” Chief Justice Cleo Powell wrote in dissent, “The majority fails to apply the most basic tenet of interpretation of constitutional provisions: looking to the language of the constitution itself.”

Powell argued that the majority’s definition of “election” contradicts how the word is defined in state and federal law. She cited a provision of Virginia’s constitution that states that the members of the House of Delegates “shall be elected … on the Tuesday succeeding the first Monday in November.” She also cited the Virginia code, which indicates that a “general election” is “an election held in the Commonwealth on the Tuesday after the first Monday in November.”

To make its point, the dissent ventured into metaphysical considerations about the mechanics of time. Treating the early voting period as part of the election would create a “causality paradox,” the dissent argued. “An election is a process that begins with early voting, but early voting must precede an election by forty-five days,” Powell wrote. “The majority’s definition creates an infinite voting loop that appears to have no established beginning, only a definitive end: Election Day.”

The dissent argued that the majority’s definition of “election” poses other conundrums as well: For example, Virginia law stipulates that voters can’t be compelled to attend trials during the time of an election. Does this mean that the courts are effectively hamstrung for several weeks from the start of early voting to Election Day?

By some assessments, both sides made reasonable and solidly sourced arguments. But the degree to which they fixated on the definition of “election” seemed to strike at least one analyst as pedantic. Vox’s Ian Millhiser put it this way: “Rather than producing two eye-glazing opinions fighting over the meaning of a word whose definition appears to shift depending on both linguistic and historical context, the justices would have produced a better opinion if they had asked a more basic question: What is the relevant provision of the Virginia Constitution actually supposed to accomplish?”

That more basic question is, in some ways, harder to answer.

The court’s majority wrote that the laborious process of amending the constitution gives voters both an indirect and a direct opportunity to voice their views on a proposed change, voting for or against the legislators who initially approve an amendment, and then voting on the amendment itself. But if the justices were concerned about the will of the 1.3 million early voters who cast their ballots before the legislators approved the redistricting amendment, they seemed to gloss over the more than 1.6 million Virginians who voted in favor of the new maps, says Carolyn Fiddler, a Virginia state politics expert who has previously worked for Democratic and progressive organizations.

“How can they say that voters didn’t have a say?” she says. “Voters had a say and a clear majority.”

The text of Virginia’s Constitution doesn’t expand on why the constitutional amendment process is structured the way it is. But what it doesn’t say is illuminating, says Quinn Yeargain, a law professor at Michigan State University. Virginia’s previous constitution, from 1902, specified that the legislature must publicize a proposed amendment to voters three months before the intervening election. When the constitution was revised in 1971, that requirement was omitted.

“So they effectively made it easier, then, to amend the constitution,” Yeargain says. “At that point, they knew exactly how to use the words to achieve the kind of thing the majority said that it was trying to achieve. And they took those words out.”

Democratic officials in Virginia have asked the US Supreme Court to reinstate the new map for the midterms, though the emergency appeal is unlikely to succeed.

The Virginia Supreme Court ruling, with its insistence that an election begins at the first opportunity for balloting, stands in apparent contrast to other redistricting decisions. After the Supreme Court’s Voting Rights Act decision in Louisiana v. Callais made it harder for voters of color to challenge redistricting plans as discriminatory, Southern states have scrambled to redraw their congressional maps in ways that favor the GOP — in some cases, after early votes in primary elections had already been counted. The new maps will make this year’s House elections the least competitive on record, the journalist G. Elliott Morris wrote in his Substack newsletter Strength In Numbers.

The current redistricting war makes for a “deeply dissatisfying situation from beginning to end,” Yeargain says. On its own, Yeargain says he doesn’t much care for Virginia’s proposed redistricting amendment, but the nationwide struggle goes beyond the individual merits of each state’s plans.

“Instead, we’re asking a broader question,” he says. “And that is whether this year’s congressional elections are going to be legitimate in some form or another.”

What is an “election,” exactly? Virginia’s Supreme Court majority sought an answer in dictionaries, which define the word as the act or process of choosing. But who is doing the choosing? As Republicans aggressively redraw electoral maps at the behest of the president, and as Democrats attempt to counterbalance those efforts with their own redistricting, it appears that a more consequential election — one in which politicians choose their voters — is already well underway.

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