Virginia’s Supreme Court just delivered one of the most consequential election rulings of the 2026 cycle. In Scott v. McDougle, a 4-3 majority held that the Democrats’ attempt to amend the Virginia Constitution and redraw the state’s congressional map mid-decade — from a 6-5 Democratic split to a 10-1 Democratic gerrymander — failed because there was no “intervening election” between the two required legislative votes. The 2025 election was already underway in September when the General Assembly cast its first vote in October. Five Republican U.S. House seats just survived. And the Democratic response, as reported by the New York Times, is genuinely unhinged: a serious internal discussion of lowering Virginia’s mandatory judicial retirement age to fire every justice on the court and replace them with loyalists.
The Ruling Is Airtight
Article XII, § 1 of the Virginia Constitution sets out a deliberately slow process: the General Assembly proposes an amendment, an intervening election occurs, the new General Assembly votes again, and the voters then ratify. The intervening election exists so the public can weigh in on the legislators making the change before the second vote.
That sequence broke. Early voting for Virginia’s 2025 House of Delegates elections opened on September 19, 2025. The General Assembly cast its first vote on the redistricting amendment on October 31, 2025 — by which point roughly 1.3 million ballots, about 40 percent of the total, had already been cast. The second legislative vote came in the 2026 Regular Session, and a referendum followed on April 21, 2026, passing by a 1.69-percent margin.
The Supreme Court of Virginia held, drawing on the U.S. Supreme Court’s reasoning in Foster v. Love, 522 U.S. 67 (1997), that an “election” under Article XII is not a single day. It is the combined act of voters casting ballots and officials receiving them. Once that process is underway, the constitutional clock has started. The October 31 vote came mid-election, so there was no intervening election, and the amendment fails. The 2021 court-drawn 6-5 maps govern the 2026 congressional races.
The Democrats Asked for This Timing
Part of the Democratic public reaction is that the court should have stopped the referendum before it occurred rather than nullifying the result. That argument is intellectually dishonest. Under Scott v. James, 114 Va. 297 (1912), judicial review of amendment procedure happens after ratification — and the Democrats themselves, along with the Virginia Attorney General, specifically asked the court to let the vote proceed and rule afterward, on the theory that the question might become moot if voters rejected the amendment. They got the procedure they requested. They lost on the merits.
The Wild Plan to Replace the Entire Court
Here is where the story turns. The New York Times reported on May 10, 2026, that on a private call between Virginia’s congressional Democratic delegation and Minority Leader Hakeem Jeffries, lawmakers seriously discussed lowering Virginia’s mandatory judicial retirement age from 75 to 54 — one year below the youngest sitting justice — so that all seven members of the Virginia Supreme Court would be forced to retire immediately. The Democratic-controlled General Assembly would then appoint seven replacements willing to reinstate the gerrymandered map.
I want to put a marker down. “Everything we did was legal” is the defense of the German government in the 1930s, not the defense of a constitutional republic. Martin Luther King made the same point in Letter from Birmingham Jail: everything Hitler did in Germany was legal. The Nazis’ first move on the courts in 1933 was to purge judges with the wrong politics; the Volksgerichtshof — the “People’s Court” — came shortly after. Lowering a retirement age to fire seven sitting justices and install loyalists who will reverse a specific pending case sits in that family of ideas, not in ours.
The Legal Problems With the Gambit
Set aside the politics. The scheme has at least three doctrinal weaknesses.
First, due process. From Tumey v. Ohio, 273 U.S. 510 (1927), through Rippo v. Baker, 580 U.S. 285 (2017), the U.S. Supreme Court has held that the Due Process Clause guarantees a fair and impartial tribunal. Manufacturing a court of confirmed loyalists for the specific purpose of overturning a pending ruling in which the legislature is itself a party is the textbook violation of that principle.
Second, Moore v. Harper, 600 U.S. 1 (2023). Chief Justice Roberts, writing for a 6-3 majority joined by Justices Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson, held that state courts retain the power to review state-legislative actions on congressional redistricting under state constitutional law. The Virginia Supreme Court’s ruling here does exactly that: it enforces the state constitution against a legislative attempt to regulate federal elections. Moore forbids state legislatures from drawing congressional districts “independently of requirements imposed by the state constitution.” Re-staffing the court to reverse that ruling is Moore in reverse — and federal courts will see it that way.
Third, Bush v. Gore, 531 U.S. 98 (2000). A state-court restaffing engineered to control the outcome of a federal election would land squarely in the doctrine’s swing zone. The federal Equal Protection Clause reaches state election machinery affecting federal offices, and arbitrarily reshaping a state high court mid-litigation is about as arbitrary as state action gets.
What Comes Next
There is also a brute timing problem. Steven Koski, Commissioner of the Virginia Department of Elections, told the court that any map changes after May 12, 2026, will significantly increase the risk that his agency cannot prepare for the August 4 primary. The Democrats have days, not weeks. Governor Abigail Spanberger has to sign any retirement-age legislation, and her office has not been briefed. Speaker Don Scott told the Times he had not spoken to anyone about the plan. Mixed reactions on the Jeffries call, no clear path forward.
For now, Republicans hold the line at 6-5, and the map that was going to flip five Republican seats off the board is dead. The people who told you for two years that the other side wanted to crown a king just spent a Saturday afternoon kicking around the idea of firing seven justices by statute to win a redistricting fight. Read that carefully, and remember it in November.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. This does not constitute legal advice.