Virginia Attorney General Jay Jones has filed a petition with the U.S. Supreme Court challenging a state court ruling that invalidated a voter-approved referendum on congressional redistricting. While the goal is to preserve a map favorable to Democrats, the legal strategy employed by Jones raises significant concerns. By invoking controversial legal theories, Jones is effectively asking a conservative-dominated Supreme Court to intervene in state election law—a move that could ultimately weaken Democratic positions and expand federal judicial power over elections.
The Conflict: Voters vs. The State Supreme Court
Earlier this year, Virginia voters approved a constitutional amendment via referendum. This measure aimed to redraw congressional districts to give Democrats four additional seats in the U.S. House of Representatives, a move intended to counterbalance aggressive Republican gerrymandering in states like Texas.
However, the Virginia Supreme Court recently struck down this referendum in Scott v. McDougle. The state court ruled that the referendum process violated state constitutional requirements, arguing that voters were improperly denied a direct say in the constitutional amendment itself—a claim that critics find absurd since voters explicitly approved the measure.
While the state court’s decision may be legally questionable under Virginia law, it remains a matter of state constitutional interpretation. Historically, state supreme courts have the final authority on such matters. The U.S. Supreme Court typically does not interfere unless federal law is directly implicated.
The Dangerous Legal Strategy
Attorney General Jones’s brief to the U.S. Supreme Court attempts to bypass this traditional boundary by relying on two main arguments, one of which is legally weak and the other potentially catastrophic for Democratic interests.
1. Misreading Federal Precedent
Jones argues that the Virginia Supreme Court misinterpreted a 1997 U.S. Supreme Court case, Foster v. Love. He claims this error brings federal law into the mix, allowing the U.S. Supreme Court to intervene.
This argument is a significant stretch. State courts frequently cite federal cases for persuasive value. A mere misreading of a federal precedent does not automatically transform a state law dispute into a federal question. The Virginia court also relied heavily on state statutes, historical documents, and its own interpretation of state constitutional disenfranchisement claims. Citing a federal case incorrectly is not enough to justify federal override.
2. Invoking the “Independent State Legislature” Doctrine
The more alarming aspect of Jones’s petition is its reliance on the Independent State Legislature Doctrine (ISLD). This discredited theory argues that the U.S. Constitution’s clause giving state “legislatures” the power to regulate federal elections excludes other state branches—such as governors, courts, and voters themselves.
- The Theory: Under a strict ISLD interpretation, only the state legislature can make election rules. Governors cannot veto them, courts cannot interpret them, and voters cannot change them via referendum.
- The Precedent: In Moore v. Harper (2023), the U.S. Supreme Court rejected the strongest version of ISLD but left the door open for a “weaker” form. The Court stated that state courts cannot “exceed the bounds of ordinary judicial review” when intruding on legislative roles. Crucially, the Court did not define these bounds, creating a vague standard that invites future federal intervention.
By invoking Moore, Jones is asking the U.S. Supreme Court to determine whether the Virginia Supreme Court exceeded its authority. This invites the federal justices to seize control over state election disputes.
Why This Matters: The Risk of Federalizing Elections
The stakes of this strategy extend far beyond Virginia’s current map. If the U.S. Supreme Court accepts Jones’s invitation, it sets a precedent for federal oversight of state election administration.
“State courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures.” — Moore v. Harper
This vague standard allows the U.S. Supreme Court to act as the ultimate arbiter of state election laws. Given the Court’s current composition, this shift in power poses a significant risk:
- Loss of State Court Autonomy: State supreme courts, which are often more diverse or locally accountable, would lose their final say on election rules.
- Republican Advantage: The U.S. Supreme Court has a Republican supermajority. Recent decisions, such as Rucho v. Common Cause (2019) and Louisiana v. Callais (2026), have removed federal safeguards against partisan gerrymandering and racial discrimination in voting.
- Precedent for Future Interference: If the Court intervenes now to help Democrats in Virginia, it establishes a tool that Republicans can use in other states. For example, if a future Democratic-controlled state court blocks a Republican election law, the U.S. Supreme Court could overturn it using the same logic.
Conclusion
Virginia Attorney General Jay Jones’s petition is a high-stakes gamble that prioritizes short-term political gain over long-term structural integrity. By asking the U.S. Supreme Court to intervene in a state constitutional dispute, Jones risks empowering a conservative judiciary that has consistently expanded gerrymandering opportunities. The irony is palpable: Democrats are inviting the very institution that deregulated partisan gerrymandering to manage their election disputes, potentially handing Republicans greater control over the future of American elections.
