When the Aaron Burr character in the musical “Hamilton” realizes that the only way two rivals can resolve their differences is for them to step off 10 paces and fire dueling pistols, he darkly says: “Okay, so we’re doin’ this.”
In that same spirit, we Virginians can now look at Democrats who are planning a snap special session of the General Assembly for purposes of setting in motion a mid-decade congressional redistricting and make the same cold-blooded observation: “Okay, so we’re doin’ this.”
Texas started this whole business of drawing congressional lines in a bid to squeeze out five extra Republican seats ahead of next year’s midterms. California responded by looking for ways to gain five Democratic seats. Since then, Republicans who control other state legislatures have started trying to do the same thing, so here are Democrats in Virginia who see the potential to pick up two or three extra seats to counter others.
That means Virginia needs a constitutional amendment to repeal the constitutional amendment that voters approved just five years ago, in 2020, to take the power of redistricting away from the majority party and give it to a bipartisan commission in hopes that commission would avoid doing what Democrats are now intent on doing: Gerrymandering the state.
When the legislature convenes Monday, Democrats will surely profess their belief that gerrymandering is a bad thing but that other states have forced their hand. This may be gerrymandering, they’ll say, but it’s for the higher goal of reining in an out-of-control president in Donald Trump.
Let’s walk through all this.
1. It’s unclear what the amendment would say
Democrats have multiple options. They could repeal the current redistricting rules in the constitution entirely. They could set up a new process. Or they could put in some language to set the current process aside if other states change their rules; that’s how California is trying to handle it. Either way, the goal is to give the General Assembly the power to draw congressional lines to favor Democrats and do this in time for the 2026 midterms.
2. The process is rushed and subject to legal challenges
Why now? Because Virginia’s constitution requires the General Assembly to pass a proposed constitutional amendment twice — with an election for the House of Delegates in between the two votes. The goal is to create an intentionally slow process and to give the public an opportunity to weigh in via House elections. Didn’t like that your legislator voted for that amendment? Throw ’em out!
That’s why Democrats need the session now, to beat the Nov. 4 election. Then they can come back in January — they’re assuming they’ll still control the House again. Republicans are already raising legal objections. Early voting has been going on since Sept. 19, so they argue Democrats have started the process too late — that Nov. 4 isn’t an intervening election because that election is already underway.
Expect lawsuits on that.
3. Democrats see holding a referendum in April; that’s never happened
Let’s assume, for now, that the General Assembly passes the amendment again in January. The state constitution says voters must then approve the amendment in a referendum — and that referendum can be 90 days (or more) later. In the past, those votes have always been in November. Democrats appear to be aiming here at an April referendum — something we’ve never had before.
Since turnout in off-cycle elections is always low, Democrats may aim to boost participation — participation favorable to their cause — by scheduling another constitutional amendment vote at the same time. The legislature was already scheduled to take up second votes on three other proposed amendments. The speculation is that Democrats will take one of those — on same-sex marriage — and schedule it at the same time as the redistricting amendment.
Here’s the political rationale for that. Virginia’s constitution currently bans same-sex marriage. That provision was rendered moot by the U.S. Supreme Court ruling in 2015 — but the original language remains in the Virginia document. If the U.S. Supreme Court ever changed its mind and overturned that 2015 ruling, Virginia’s ban on same-sex marriage would come back into effect. To prevent that, the General Assembly this year passed an amendment to repeal that ban and insert language to guarantee the right to a same-sex marriage so that it’s preserved in Virginia no matter what happens nationally.
There is a case currently on appeal to the U.S. Supreme Court that could conceivably reopen the question, although justices haven’t decided whether to take it yet — and won’t until Nov. 7. If the Supreme Court agrees to take the case, Democrats could argue that Virginia shouldn’t take any risks that might leave some marriage invalidated — that it needs to speed up a referendum on the same-sex marriage amendment.
Pairing that vote with a redistricting amendment could give Democrats a ready-made constituency of same-sex marriage supporters to go to the polls, even if it’s an unusual time of year. Republicans will say Democrats are trying to ram this through, and they won’t be wrong. Also important to note: The governor has no say in any of this. Constitutional amendments aren’t subject to a veto; once passed twice by the legislature, they go straight to the voters.
4. Republicans say two amendments, not just one, will be necessary
Republicans don’t have the votes in the General Assembly to block a repeal amendment, so they will do everything they can to thwart the Democratic plans in court. This next part may seem like a legal detail, but it’s the kind of thing Republicans are already bandying about.
The part of the constitution that sets up a redistricting commission is Article 2, Section 6-A. That’s what Democrats will want to repeal or modify. However, Article 2, Section 6 says redistricting can only happen every 10 years. Democrats will need to change that, too. Republicans will contend that since that’s a different section, it will require a different amendment. Who’s right? Some judge may have to decide.
The billable hours on this have probably already begun.
5. We’re looking at a compressed election schedule in 2026
The normal schedule — based on our current calendar — would be for party primaries in June, with early voting starting sometime in early May.
If Democrats set an April referendum to approve the amendment, we’d then need a legislative session to pass new maps. Let’s assume they can do that quickly — by then, it’s almost time for early voting to begin in districts that just got drawn. How realistic is all that? We already have two candidates who have announced for the Democratic nomination in the 6th District, with a third in the wings. We have four candidates who have announced for the Democratic nomination in the 5th District. So far, eight have announced in the 1st District. However, if districts are redrawn, none of those candidates will know for sure which district they’re in until new maps are passed in — let’s be optimistic — April.
However, Virginia’s election laws and regulations aren’t set up for this. The legal process for a June primary actually begins Jan. 1; that’s the earliest date at which candidates can start circulating petitions to get on the ballot. This year, April 3 was the deadline for candidates to file to get on a June primary ballot. Other deadlines for campaign-related filings come soon after that. However, by April 2026, Virginia may not have even held a referendum to change the redistricting process or held a legislative vote to approve new maps.
If we’re not approving new maps until April, we’ll need a later primary date to accommodate all these changes. That can be done, but it requires more action. The point being: There are a lot of moving parts, and, just like a machine with a lot of moving parts, there are lots of things where something could break down — and where Republicans could try to gum up the works with parliamentary objections in the legislature or legal challenges in court.
Update: I just had a reader ask who would call this special election. Is that the governor or something the legislature would do? I don’t know. Maybe no one does at this point, but this is potentially a place where the governor might be involved, whether she wants to be or not.
6. Two-thirds of Virginia voters approved the current system
That 2020 constitutional amendment to set up a commission passed with 66.1% of the vote. Voters often change their minds, but have that many changed their minds on gerrymandering? That may be the wrong question — an April electorate would be much smaller than the presidential election electorate that approved the amendment in question. Still, this will undoubtedly involve a smaller electorate voting to undo what a bigger one has done, not that long ago. That’s not a good look, but none of this is about appearances: It’s about Democrats trying to find some extra congressional seats to negate what Republican legislatures elsewhere are doing. This is like the Hamilton-Burr duel, just in a different form.
That 2020 amendment passed in every city and county in the state except one — only Arlington County voted no, by 55.0% to 45.0%. Elsewhere, there was surprising bipartisanship. In bright blue Charlottesville, 73.7% said yes. Bright red Amherst County said 73.5% yes.
Democrats understandably see a route open to them to pull this off — they have a majority in the legislature, and they expect to have a majority come January. Many of these complicating details can be swept away one way or another. Their only risks are that Republicans might find a way to block this in court or that voters will be so outraged in the coming week that this whole plan backfires on Democratic candidates statewide. Democrats probably see that as a minor risk compared to the major payoff of some additional House seats — and what to them is the duty of combating an existential threat to the republic in the form of Trump.
For now, these are the procedural issues. In Monday’s column, I’ll look at some possible ways that Virginia’s congressional maps could change.
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