It's a process thing

by Publicola, Friday, May 08, 2026, 11:23 (18 days ago) @ BPH

Like some states, VA requires that proposed amendments be passed by a majority of both legislative chambers on two separate occasions: the first is the original approval, but then it has to be voted on again after the next general election. If it is again approved by both chambers, then the amendment proposal is submitted to voters for approval/rejection.

The intervening election requirement is meant to ensure changes to the constitution are considered, among other things. In principle, it can make that general election a referendum (of sorts) on amendment proposals: if the legislature is trying to sneak an amendment into the constitution, you have the chance to vote the bums out in the general election and put in candidates who will oppose the amendment proposal in the post-election legislative vote. In Virginia's case, this requirement is arguably redundant since the popular vote on the amendment proposal is an actual referendum on that proposal.

The basic argument from the majority of the court is that the legislature approved the amendment proposal too close the general election and at a time when many Virginians had already cast early ballots. This means those voters couldn't shape their electoral choices with the amendment proposal in mind. So it disenfranchises them in that they didn't have a chance to vote in favor of candidates who would vote against the proposal in the post-election legislative re-vote.

The problem with this argument is that the people aren't meaningfully disenfranchised because they get to vote on the actual amendment proposal -- if they are unhappy with it, they can vote against it. But this boils down to an amendment process that is a bit janky. The intervening election requirement seems unnecessary in light of the direct vote on the amendment. The court probably could have thought more about the intention behind the intervening election requirement and arrived at a different conclusion. But that probably would have involved some interpretive creativity. Besides, the intervening election requirement at least arguably serves a purpose other than merely providing an opportunity to voice disapproval of the amendment proposal.