The Virginia Supreme Court’s nullification of the people’s initiative is embarrassing hackwork

I have been meaning to follow up on Paul’s excellent series of recent posts about law and politics. But one thing I will say is that there are cases in which the initiative process is governed by black-letter legal requirements that particularly initiatives fail one way or another. One thing I want to emphasize is that this is absolutely not one of those cases. I would not go so far as to say that there is no possible basis in state law for the majority’s conclusion. But in a context in which a majority concerned with liberal democracy in America should overturn an initiative passed with a majority only in a case where the law clearly compels it, this is instead clearly a case where the majority started with the premise that they wanted to nullify the initiative and backfilled a highly unconvincing argument to reach that conclusion:

But in a decision that can only be described as head-spinning, the Virginia Supreme Court held that it was unconstitutional for the Virginia Legislature and voters to amend their constitution. The legal question turns on the meaning of the term “general election.” A one-vote majority ruled that an election starts not on the day of the election itself, but when the first early voter casts their ballot. Under this theory, the early voting that had begun 45 days before Election Day meant that the Virginia Legislature had failed to put a full election between its first proposed amendment vote in October and its second in February.

To reach this conclusion, the Virginia Supreme Court rejects both constitutional text and common sense, and instead cherry-picks history. The court starts with grand judicial maximalist proclamations from the founding about how it’s the duty of courts, especially Virginia courts, to decide legal questions. It then proceeds to butcher the legal question before it. The court cites statements from the 1960s General Assembly debates saying that constitutions were meant to be changed only sparingly. Having tipped the scales in favor of preparing to make a limited reading of the state Legislature’s power, the court then decides that the general election began on Sept. 19, 2025, the first day of early voting.

As the dissent points out, this early voting definition makes no sense. The Virginia Constitution doesn’t just use the term “general election” when it says there needs to be an election between amendments. Instead, Virginia law specifically defines “general election” as occurring “on the Tuesday after the first Monday in November.” The law could have said that the general election was one that ends on Election Day, or surrounds Election Day, or was related to Election Day, but it didn’t—it says on that Tuesday.

This passage makes the contempt that the bare majority has for the voters who wisely reject their naive theory that democracy can be preserved through unilateral disarmament particularly clear:

i have my own strong opinions about this but curious what you guys think this paragraph is doing in the Virginia Supreme Court's decision to nullify the will of the people

[image or embed]— post malone ergo propter malone (@proptermalone.bsky.social) May 8, 2026 at 8:16 AM

Whatever the judges in the majority think the rules should be, under the rules under which the initiative vote was conducted a margin of nearly 105,000 votes is plenty good. The judges have no warrant to reject this majority because it disagrees with the choice they made, perhaps because they have been living in Walter White’s New Hampshire hideout cabin for the past 2 years and aren’t even getting newspaper deliveries.

In my view, Republican judges using incredibly strained statutory interpretations and self-aggrandizement to favor Republicans and Democratic judges appointed by Republican legislators in now-Democratic states using incredibly strained statutory interpretations and self-aggrandizement to favor Republicans is a really bad equilibrium. And it’s particularly egregious given what is happening in the not-even-former Confederacy after Callais.