“General Election” in Article XII, Section 1 Includes Early Voting; Late First Passage Voids a Constitutional-Amendment Referendum

I. Introduction

Scott v. McDougle arose from an unusually compressed and politically charged attempt to amend the Constitution of Virginia to authorize partisan gerrymandering of Virginia’s congressional districts. The appellants (collectively, the “Commonwealth”) advanced the amendment through two General Assembly approvals—one during a disputed 2024 Special Session and the second during the 2026 Regular Session—and then submitted it to voters in a March–April 2026 special election with a “restore fairness” ballot question.

The appellees (the “Claimants”) did not ask the Court to decide whether partisan gerrymandering was wise or constitutional as a substantive matter. Instead, the case turned on a procedural question with decisive consequences: whether the General Assembly complied with Article XII, Section 1, which requires two legislative approvals separated by an intervening “next general election” of House of Delegates members.

The key factual trigger was timing. The first legislative vote approving the proposal occurred on October 31, 2025—after early voting for the 2025 House of Delegates general election had already begun (September 19, 2025) and after approximately 1.3 million votes had been cast.

II. Summary of the Opinion

The Supreme Court of Virginia held that the General Assembly’s process violated Article XII, Section 1 because the first legislative approval came after the intervening “general election” had already started (via early voting). The Court rejected the Commonwealth’s narrower reading that “general election” means only Election Day.

Because Article XII, Section 1 demands strict compliance, the Court concluded that the constitutional defect irreparably tainted the later referendum and “nullifie[d] its legal efficacy.” The Court therefore affirmed the circuit court and held that the 2021 congressional maps drawn under Article II, Section 6-A remain in force for the 2026 elections.

Chief Justice Powell, joined by Justices Mann and Fulton, dissented, arguing that “general election” is a single day under Virginia statutory definitions and constitutional harmonization principles, and warning of downstream conflicts with other constitutional provisions and federal “single day” election mandates.

III. Analysis

A. Precedents Cited (and how they shaped the decision)

1. Judicial review over amendment procedure

• Marbury v. Madison and Commonwealth v. Caton supply the opinion’s framing: Virginia courts not only may but must police constitutional boundaries—even against the “united powers” of the legislature—when constitutional limits are exceeded.
• Scott v. James is pivotal for jurisdiction and timing. The majority reads Scott as limiting courts’ use of pre-election injunctions (“arrest or interfere with the process of legislation”) but not limiting courts’ post-election power of review. The Court uses Scott to reject any attempt to treat the referendum vote as insulating prior procedural defects.
• Harrison v. Day is cited for the judiciary’s “authority to determine the validity of the proposal, submission, or ratification of constitutional amendments,” reinforcing that Article XII compliance is a justiciable question even after voters act.
• Carlisle v. Hassan supplies the principle that express or necessarily implied constitutional restrictions on the General Assembly “may not be ignored.”
• Coleman v. Pross provides the strict-compliance standard the majority applies: Article XII’s deliberately “lengthy, precise, and balanced procedure” is mandatory, and “strict compliance” is required to ensure “deliberate consideration and careful scrutiny.”

2. Justiciability timing in companion litigation

• Koski v. Republican Nat'l Comm. is used to clarify Scott’s scope: Scott governs timing of injunctive remedies, not the existence of judicial review. Koski also underpins the majority’s insistence that the referendum margin is irrelevant to whether Article XII was satisfied.

3. Textualism, popular meaning, and context

• Old Dominion Comm. for Fair Util. Rates v. State Corp. Comm'n (quoting Howell v. McAuliffe and referencing District of Columbia v. Heller) supports the majority’s interpretive approach: constitutional words are understood as “popularly employed,” because the Constitution is “written to be understood by the voters.” This is the hinge for rejecting “election = Election Day only” as linguistically unnatural.

4. “Election” as a process; federal cases on early voting and a fixed election day

• United States v. Classic contributes the “substance” view: an election is the expression of choice by qualified electors.
• Foster v. Love supplies the “combined actions of voters and officials” definition and the “consummation” concept: states may allow pre–Election Day voting so long as the election is not consummated before federal election day. The majority relies on Foster to show that a multi-day ballot-casting window does not contradict the legal concept of a single Election Day that concludes the election.
• Millsaps v. Thompson, Voting Integrity Project, Inc. v. Keisling, and Voting Integrity Project, Inc. v. Bomer are invoked to rebut the dissent’s suggestion that early voting conflicts with federal law. The majority reads these cases as approving early voting regimes because final selection still occurs on Election Day.
• Republican Nat'l Comm. v. Wetzel is quoted for the proposition that history confirms “election” includes both “ballot casting and ballot receipt.” (The Court notes certiorari granted sub nom. Watson v. Republican Nat'l Comm..)

5. Interpretive canons: same meaning vs. material variation

• Jenkins v. Mehra is used to acknowledge the “same term, same meaning” presumption.
• Cherokee Nation v. Georgia is cited for Chief Justice Marshall’s reminder that meaning is “controlled by the context.”
• Zinone v. Lee's Crossing Homeowners Ass'n and Tvardek v. Powhatan Vill. Homeowners Ass'n support the opposite inference: when the Constitution uses materially different terms in related provisions, the difference is presumed intentional. The majority uses this to distinguish Article XII’s “general election” from Article IV’s “shall be elected.”

6. Statutes cannot redefine constitutional terms

• Moore v. Pullem is embraced by both sides but for different propositions. The majority uses Moore’s pro-voter, liberal-construction thrust (in a voting-access context) and Moore’s recognition that constitutional meaning can defeat statutory interpretations “expressly or by necessary implication.”

B. Legal Reasoning (how the Court got there)

The Court’s reasoning proceeds in three linked steps:

1. Article XII, Section 1 is a strict, voter-protective sequencing rule.
   The Court treats the intervening-election requirement as a structural safeguard: voters must have an opportunity—via an intervening House election—to react to the first legislative approval by electing delegates who will participate in the second approval. This is not mere formality; it is the mechanism that “slow-walks” constitutional change to prevent hasty alteration of “permanent principles.”
2. “General election” means the election period in which votes may be cast, not only the final day.
   The majority anchors the definition in (a) ordinary language (“election” as the act/process of choosing), (b) historical practice (elections historically spanned days; modern early/absentee voting returns to time-window voting), and (c) legal usage distinguishing “election” from “Election Day.” It therefore holds that the “metes and bounds” of a general election begin when lawful ballot casting begins and end when polls close on Election Day.
3. Because voting had begun before the first legislative approval, the required “intervening” election never occurred.
   With early voting underway, the electorate could not fully exercise the constitutional “opportunity” Article XII presupposes—particularly the more than 1.3 million early voters who could not retroactively condition their House vote on knowledge of the amendment’s first passage. Under the Court’s strict-compliance framework, that failure voids the referendum: the later popular vote cannot cure a defect in the constitutionally mandated path to submission.

Two additional points are central to the opinion’s institutional posture:

• The referendum margin is legally irrelevant. Whether the measure passed by landslide or by 1.69% of total votes, the Court will not treat vote totals as a substitute for compliance with Article XII.
• Statutory election definitions cannot override constitutional meaning. The Court rejects reliance on Code definitions (including Code § 24.2-101) where statutory text itself is context-limited and where, in any event, Article II, Section 4 authorizes election regulation only insofar as it is “not inconsistent with this Constitution.”

C. Impact (what changes going forward)

• Hard timing constraint for constitutional amendments: Any first-passage vote on a proposed constitutional amendment must occur before voting begins in the “next general election” for House of Delegates members—meaning before early voting starts, not merely before Election Day.
• Remedy doctrine with teeth: The Court’s “incurable taint” holding signals that Article XII defects are not subject to harmless-error analysis and cannot be “ratified” by a successful referendum.
• Litigation focus shifts to calendars: Future Article XII challenges may scrutinize election administration timelines (early voting start dates, absentee-ballot availability) relative to legislative action dates, especially where special sessions or late-session maneuvering occur.
• Redistricting stability: In the specific redistricting context, the decision preserves the Article II, Section 6-A framework by preventing a procedurally defective amendment from displacing the Court-implemented 2021 maps.

IV. Complex Concepts Simplified

• Intervening-election requirement (Article XII, Section 1): Virginia’s Constitution requires two legislative approvals of an amendment, with a House of Delegates general election in between. The point is to let voters weigh in indirectly (by electing different delegates) before the legislature gets its second vote.
• Strict compliance: When the Constitution prescribes a detailed method for changing itself, the legislature must follow that method exactly; courts do not treat deviations as “close enough.”
• Election vs. Election Day: “Election Day” is the last day of voting when polls close; “election” can be the broader process that includes earlier lawful voting (early in-person and absentee), culminating on Election Day.
• “Incurable taint” and a void referendum: If the path to the referendum is constitutionally defective, the referendum result has no legal effect—even if a majority voted “yes.”
• Judicial review vs. pre-election injunctions: The Court distinguishes (a) stopping the amendment process midstream (disfavored under Scott v. James) from (b) reviewing validity after the vote (required when Article XII compliance is challenged).

V. Conclusion

Scott v. McDougle establishes a consequential sequencing rule for Virginia constitutional amendments: the “next general election” in Article XII, Section 1 begins when lawful voting begins, including early voting. A proposed amendment cannot satisfy the intervening-election safeguard if the General Assembly’s first approving vote occurs after voters have started casting ballots in that intervening election.

Equally important, the Court confirms that strict compliance is not aspirational and that a successful referendum cannot cure a defective amendment process. The decision strengthens the judiciary’s role—grounded in Marbury v. Madison, Commonwealth v. Caton, Scott v. James, and Coleman v. Pross—in enforcing the Constitution’s self-amendment rules as binding limits on legislative power, even in the face of a popular vote.