By Thomas R. Scott, Jr., Esq.
May 8th’s decision by the Supreme Court of Virginia striking down Virginia’s mid-decade congressional redistricting referendum was not merely a political setback. It was a constitutional reminder that process matters even when one’s preferred outcome seems politically urgent.
And that is precisely why any appeal to the Supreme Court of the United States would likely amount to little more than an expensive exercise in political theater funded by Virginia taxpayers.
The Virginia Supreme Court’s ruling was grounded in Article XII, Section 1 of the Constitution of Virginia specifically, the constitutional requirement governing how amendments must proceed through intervening general elections before being presented to the voters. The Court did not base its holding on the U.S. Constitution. It interpreted Virginia’s own constitution.
That distinction matters enormously.
Under the longstanding “adequate and independent state grounds” doctrine, the United States Supreme Court generally has no jurisdiction to overturn a state supreme court’s interpretation of its own constitution. The doctrine is foundational to federalism and was articulated clearly in cases such as Michigan v. Long and Murdock v. Memphis.
In plain English: when a state supreme court says, “Our own constitution was violated,” that is ordinarily the end of the matter.
Yes, the dissent attempted to frame portions of the dispute in federal-law terms. But the majority opinion did not rest its holding on federal constitutional interpretation. It rested squarely on Virginia constitutional procedure. That is a critical jurisdictional difference.
So before the Attorney General’s Office spends more public money chasing headlines and cable-news applause, Virginians deserve a candid answer to a simple question:
What exactly is the federal issue SCOTUS is supposed to decide?
Because “we don’t like the Virginia Supreme Court’s interpretation of the Virginia Constitution” is not a federal question.
Even more practically, the timing problem is insurmountable. There is virtually no realistic scenario in which the United States Supreme Court could fully brief, hear, and decide this matter in time to affect the November elections. Election administration deadlines, ballot preparation, candidate filings, and voter reliance interests make late-stage federal intervention extraordinarily unlikely.
Which raises another question: if the General Assembly truly believes the referendum process was constitutionally sound, why not simply do it correctly next time?
That answer, too, is fairly obvious. Because this was never presented to the public as a mere procedural exercise. It was part of a nationalized political effort to secure congressional advantage before the 2026 midterms.
And Virginians paid dearly for it.
According to reporting from Virginia Public Access Project and multiple national outlets, the referendum became the most expensive ballot measure campaign in Virginia history, with spending estimates ranging from approximately $83 million to more than $93 million.
Much of that money came from national political organizations and undisclosed “dark money” groups seeking influence over congressional control in Washington rather than governance in Richmond.
And now taxpayers are expected to underwrite yet another round of litigation over a referendum the state’s highest court has already declared constitutionally defective?
At some point, stewardship of public funds must matter.
What makes the political rhetoric surrounding this effort especially remarkable is the sudden reversal in principle depending on geography and party label.
For years, Democrats criticized aggressive redistricting efforts in states such as Texas, Tennessee, Florida, and North Carolina as partisan “power grabs” that diluted communities and entrenched political control.
Yet when the same tactics appeared in Virginia this time benefiting Democrats suddenly the rhetoric shifted from “dangerous gerrymandering” to “defending democracy.”
Principles that change depending on which party benefits are not principles. They are strategies.
And many Virginians outside the urban crescent recognized exactly what this effort represented: a further consolidation of political power into Northern Virginia and a handful of densely populated metropolitan regions at the expense of smaller communities and rural counties whose voices already struggle to compete in statewide politics.
Anyone who drives across Virginia can see the reality plainly. Geographically, the Commonwealth remains overwhelmingly red. But population concentration in Northern Virginia, Richmond, and Hampton Roads increasingly determines statewide outcomes, often leaving rural communities politically marginalized despite their enormous geographic, agricultural, cultural, and economic contributions to the Commonwealth.
Reasonable people can disagree about policy. But dismissing rural Virginians as politically expendable is both morally shortsighted and electorally dangerous.
Which brings me to one of the more unintentionally revealing moments in this entire debate: the now-infamous comment by State Senator Lamont Bagby suggesting he understood rural America because he watched “The Waltons,” “The Andy Griffith Show,” and “The Dukes of Hazzard” growing up.
One suspects rural Virginians would prefer actual representation over syndicated television familiarity.
Watching reruns of “The Dukes of Hazzard” no more qualifies someone to understand Southwest Virginia than watching “Suits” qualifies someone to try a murder case.
Virginia deserves better than constitutional shortcuts, performative litigation, and nine-figure political spending campaigns designed primarily to influence control of Congress.
The wiser course now is straightforward: Respect the Court’s ruling. Stop spending taxpayer money chasing a nearly impossible federal appeal. If legislators want constitutional change, follow the constitutional process properly next time.
That is not partisan. That is constitutional government.
Mr. Scott is the Senior Partner at the Street Law Firm in Grundy where he has practiced for nearly 50 years. He is also a Distinguished Visiting Professor of Law at the Appalachian School of Law where he teaches Evidence, Trial Advocacy, Criminal Practice, and Professional Responsibility. He is a Fellow in the American College of Trial Lawyers and an Inductee in the Virginia Lawyers Hall of Fame. Mr. Scott is a graduate of Hampden-Sydney College and the T. C. Williams School of Law at the University of Richmond.
