The political world has spent years watching Justice Ketanji Brown Jackson dissent from the originalist-conservative majorities on the Supreme Court. But on May 4, 2026, in Callais v. Louisiana, No. 25A1197, she wrote something that may inadvertently hand Republicans a critical win in a completely different state — and it has nothing to do with the Second Amendment. It has everything to do with who controls the U.S. House of Representatives after November 2026.
Virginia’s Mid-Decade Power Play
Here is the background you need. Virginia currently sends eleven members to the U.S. House of Representatives — six Democrats and five Republicans. That breakdown reflects the 2020 census allocation and the district lines drawn by Virginia’s bipartisan Redistricting Commission, which was itself created by a voter-approved constitutional amendment.
Governor Abigail Spanberger and the Democratic-controlled legislature want to change that. Their goal is to redraw the congressional map mid-decade — outside the normal post-census cycle — in a way that would shift the delegation from 6–5 Democratic to something closer to 10–1. To do that, they needed to strip the Redistricting Commission of its congressional mapping authority. And to do that, they had to amend the Virginia Constitution.
Here is where the Democrats’ legal problems begin.
The Two-Session Rule and the October Vote
Under the Virginia Constitution’s Article XII, a proposed constitutional amendment must clear two hurdles: it must pass two separate sessions of the General Assembly, with a general election “sandwiched” between those two votes. The voters themselves must then ratify the proposed amendment via a referendum. The sequence is legislate → elect → legislate → ratify. If this process breaks down in any respect, the Virginia Constitution may not be amended via this path.
What actually happened was this: the Virginia legislature (controlled by Democrats) cast its first vote in favor of the redistricting amendment in October 2025. However, voting for the November 2025 general assembly election had already begun in September 2025. Then came Election Day in November 2025, which allowed Democrats to expand their majorities in the state House. Governor Abigail Spanberger took office, and the new legislature voted again in favor of the proposed redistricting amendment in January 2026. After this favorable vote, Governor Spanberger and the other Democrats moved to hold a referendum on the amendment.
Republicans challenged the referendum process, claiming that the process was not legal because the first vote of the Virginia legislature had not occurred before a general election and thus the requirement of two separate votes by the legislature separated by an intervening general election was unsatisfied.
The Republicans challenging the amendment — led by Senate Minority Leader Ryan McDougle (R-Hanover) — argued that the election had already started in September when ballots went out. Tazewell County Circuit Court Judge Jack Hurley agreed, ruling on April 22, 2026, that the redistricting referendum results must not be certified and declaring all votes on the referendum “ineffective.”
The core legal dispute is a definitional one: what is an “election”? Attorney Matthew Seligman, defending the legislature, argued that “election” means Election Day — specifically the Tuesday in November 2025 — so the October legislative vote occurred before the election and was constitutionally valid. Thomas McCarthy, arguing for McDougle’s side, said the opposite: election means the entire period during which people can cast ballots, which lasts several weeks in Virginia.
If McCarthy is right, the October vote came too late. The election had already started.
Where Justice Jackson Steps In — Against Her Political Interests
This is where it gets remarkable. On May 4, 2026, Justice Jackson dissented from the Supreme Court’s order in Callais v. Louisiana expediting the mandate in the Louisiana v. Callais racial gerrymandering case. She was angry that the Court was rushing the certified judgment through while Louisiana was — in her view — already in the middle of an election.
Louisiana had mailed ballots to overseas and military voters on April 1, 2026, and to other mail-eligible voters on April 26. By the time the Supreme Court issued its April 29 decision striking down Louisiana’s congressional map, some of those ballots had already been returned. Justice Jackson wrote:
“The Court’s decision in these cases has spawned chaos in the State of Louisiana. Louisiana’s primary elections were scheduled to take place on May 16th, 2026. Accordingly, the State of Louisiana mailed ballots to overseas and military voters on April 1st and to other voters who qualify to vote by mail on April 26th. By April 29—the date on which the Supreme Court released its decision … some Louisiana voters had already mailed back their filled-in ballots.”
She then argued that a candidate and Louisiana voters who had already submitted ballots were correct to assert “that, whatever might happen to Louisiana’s congressional map in the future, this election is already underway.”
Read that sentence again. Justice Jackson is making the same argument that Virginia Republicans are making, almost word for word. Once the ballots go out, the election is underway. The election is not a single day — it is the entire voting period.
What This Means for the Virginia Supreme Court
Justice Jackson’s dissent in Callais v. Louisiana is obviously not legally binding on the Supreme Court of Virginia — it is a dissent, not a majority opinion, and it addresses Louisiana election law in a federal constitutional context. But “not binding” is not the same as “irrelevant.”
Persuasive authority matters, especially when it comes from a sitting United States Supreme Court Justice opining that mailing ballots marks the beginning of an election. In Virginia’s case, early voting began in September 2025. The Democratic-controlled legislature did not cast its first vote on the redistricting amendment until October 2025. Under Justice Jackson’s own framework, that vote came during an ongoing election — not before it. If the Virginia Supreme Court adopts Justice Jackson’s understanding, the two-session rule was never satisfied, and the redistricting referendum will fall.
The Republican attorneys in Scott v. McDougle now have something they did not have two weeks ago: a liberal Supreme Court Justice’s written opinion that an election begins when the first ballots are cast or mailed — not when the polls open on Election Day.
I suspect the Virginia Supreme Court will do the right thing here and invalidate the referendum. What happens after that is another fight. But the irony is hard to ignore: the Justice most associated with advancing progressive voting-rights positions may have just provided the clearest legal ammunition for stopping one of the most brazen mid-decade gerrymanders in recent memory.
The stakes for 2026 House control could not be higher. Virginia’s eleven seats matter. And right now, Justice Jackson’s dissent is working for the GOP.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.