The case is about whether early voting nullifies Virginia’s power to amend its constitution

Scott turns on the provision of the Virginia Constitution that governs the state’s constitutional amendments. Briefly, in order to amend the constitution, the state legislature must vote to propose an amendment. Then, “after the next general election of members of the House of Delegates” is held, the legislature must again vote to approve the same amendment.

After that amendment is approved twice, by two subsequent legislatures, it is then submitted to the voters for their approval. If a majority of the voters approve of the amendment, it becomes part of the state constitution.

The majority of the state Supreme Court, however, claims that the more recent amendment is invalid because, when the state legislature first proposed this amendment in October 2025, it did so after early voting had already begun in the state. This is a problem, they claim, because it means that “1.3 million or so Virginians” had already cast their ballots before the amendment was proposed, and thus they were denied their opportunity to express support or disapproval of the proposed amendment when they cast their vote for state lawmakers.

In essence, the majority argues that Virginia voters who opposed the amendment were disenfranchised because they were denied an opportunity to vote for lawmakers who oppose it in the 2025 state legislative elections.

But there’s a pretty glaring problem with this disenfranchisement argument: The amendment was submitted to the voters in a referendum. Virginia voters were, in fact, given an opportunity to cast an up or down vote on the redistricting amendment. And a majority of them voted to approve it.