Early voting on Virginia’s Democrat-led, mid-decade redistricting amendment is underway. The effort aims to change the Commonwealth’s congressional district lines, but does the language of the question on the ballot itself confuse or mislead voters?
When Virginians go to vote on the new redistricting process, they’ll be asked a question: "Should the Constitution of Virginia be amended to allow the General Assembly to temporarily adopt new congressional districts to restore fairness in the upcoming elections, while ensuring Virginia's standard redistricting process resumes for all future redistricting after the 2030 census?"
But according to a lawsuit filed by the Republican National Committee, the use of the word “fairness” is a ”misleading statement — if not an obvious falsehood.” In their eyes, redrawing district lines to favor Democrats is the opposite of fair.
Virginia Democrats point to President Donald Trump’s request for more Republican seats as grounds for that fairness.
As for the nature of the question, UVA Law Professor Michael Gilbert says the legal arguments around ballot language aren’t that clear.
The bar to amend Virginia’s constitution is already high; an amendment must pass the legislature twice with an election for the House of Delegates in between. That’s two election cycles over three years. As for the rest of the rules, Gilbert told Radio IQ, “It doesn’t say a lot.”
Virginia’s constitutional language itself gives some room for state law to impact the process, saying legislators shall send it to voters, “in such manner as it shall prescribe.” And among those prescriptions is, “the explanation shall be presented in plain English, shall be limited to a neutral explanation.”
While not an exhaustive search, Gilbert said he couldn’t find any examples where the “neutral explanation" bit had been litigated. And perhaps the “fairness” language isn’t neutral. But there’s also the last line of that code, “any failure to comply with the provisions of this section should not affect the validity of the constitutional amendment.”
That caveat might be because it was never really designed to be challenged thanks to something called the political questions doctrine.
“An idea, an impulse that directs federal courts not to resolve questions that are deeply political or could be resolved or should be resolved by the political process,” Gilbert said of the legal theory that keeps courts out of politics.
And while it may be cannon for federal courts, Gilbert’s lack of optimism for Republicans "misleading language” argument comes in part because state courts often respect the same concept, especially after a proposed amendment survived the arduous process of two General Assembly votes.
“The issues at hand are meant for the realm of politics, not the realm of law,” he told Radio IQ.
For those who might be bewildered by the idea of a question being outside the court's purview, look no further than 2019's U.S. Supreme Court ruling in Rucho v. Common Cause. That's the dispute that legalized political gerrymandering, what Democrats are looking to do this year, after the high court's conservative majority pointed to the political questions doctrine as grounds for non-intervention.
"Partisan gerrymandering claims present political questions beyond the reach of the federal courts," wrote Chief Justice John Roberts. "The expansion of
judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life."
Gilbert, meanwhile, said the solution for Virginia voters is the same in both federal and state instances: “They can vote for candidates, change who they elect to the General Assembly, and then can put pressure on people to reverse this.”
Voters will decide by April 21st.
