The Virginia Constitution allows a bipartisan redistricting commission to propose new districts for the state’s delegation to the U.S. House of Representatives every ten years, after each new federal census is completed. The Virginia Supreme Court steps in when the commission is unable to develop a proposal or the General Assembly rejects it.
Under the congressional districts adopted in 2021, Democrats currently hold six seats and Republicans hold five seats. This allocation is roughly proportionate to the overall statewide vote totals in Virginia’s 2024 congressional elections: Democratic candidates won approximately 51.4% of the vote, while Republican candidates received roughly 47.6%.
Earlier this week, Virginia held a special referendum on amending the state constitution to create an exception to the usual constitutional restrictions on redistricting. The proposed amendment would allow the legislature to adopt new congressional districts through the end of this decade.
The legislature has already approved a new map, which will take effect for the November election if the referendum is certified as passing. Under this impending new map, Democratic Representatives are expected to win 10 seats and a Republican is likely to hold only one seat, even if nearly half of the state’s voters still cast their ballots for Republican congressional candidates.
The vote on the referendum was surprisingly close: 51.5% of participants voted “yes,” while 48.5% voted “no.” The Tazewell County Circuit Court has enjoined election officials from certifying the referendum’s results, however, and the Virginia Supreme Court will soon review the election’s legality on a variety of primarily state-law grounds.
Apart from the alleged procedural irregularities concerning the General Assembly’s approval of the referendum, the ballot question was phrased in a surprisingly biased manner. Voters were asked, in relevant part, whether the Virginia Constitution should be amended “to allow the General Assembly to temporarily adopt new congressional districts to restore fairness in the upcoming elections.”
One reason the Tazewell County Circuit Court issued a permanent injunction prohibiting certification of the referendum results is that the phrasing of the ballot question violated the Virginia Constitution’s Submission Clause. As the court elaborated in an earlier ruling, the “restore fairness” language was “misleading … because it would lead a voter to believe he or she were doing something unfair by voting against the proposed amendment.”
The fundamental purpose of the Submission Clause is to allow Virginia’s voters to decide for themselves whether a particular proposed amendment is fair, just and in the public interest.
The phrasing of the gerrymandering referendum is inconsistent with this provision because it blatantly tells voters that the ultimate normative decision has not been left to the voters themselves, but instead has already been made by the legislature. The official ballot text declares that the proposed amendment would “restore fairness,” leaving voters with the effectively meaningless choice of whether they want to vote against “fairness.”
You might as well ask voters whether they support justice, puppies, apple pie and the American way of life. The Virginia Supreme Court should hold that the state constitution prohibits such needlessly biased, reasonably contestable, evaluative language in a ballot referendum.
In my view, this ballot language — declaring that new congressional districts are necessary to “restore fairness” — also raises serious potential concerns under the U.S. Constitution. The U.S. Supreme Court has held that a state’s power to regulate congressional elections comes exclusively from the Elections Clause of the U.S. Constitution. The Elections Clause empowers state legislatures to regulate the “Times, Places and Manner of holding Elections for Senators and Representatives.” In the 2001 case Cook v. Gralike, the court held that this provision is not “a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restrictions.”
In Cook, the State of Missouri sought to encourage the election of U.S. Representatives and Senators who supported term limits for congressional offices. If a Representative or Senator failed to take certain specified actions to support a federal constitutional amendment to impose such term limits, the phrase “DISREGARDED VOTERS’ INSTRUCTIONS ON TERM LIMITS” would be printed next to their name on the ballot when they later ran for reelection.
Likewise, if a challenger refused to sign a pledge to take those specified actions to support a term limit amendment, the phrase “DECLINED TO PLEDGE TO SUPPORT TERM LIMITS” would appear next to their names on the ballot.
The court held that these ballot labels were unconstitutional. Calling those phrases “pejorative” and “negative,” the court explained that they were “plainly designed to favor candidates who are willing to support” the state’s term limits proposal and “disfavor” other candidates. They were intended to “handicap candidates at the most crucial stage in the electoral process — the instant before the vote is cast.” The Elections Clause does not allow states to “attempt to dictate electoral outcomes” in congressional elections in this manner.
The Virginia referendum is at least one step removed from Cook. Cook involved the content of ballots used in actual congressional elections; the referendum ballots instead concern the districts to be used in upcoming congressional elections. Virginia’s choice of congressional districts, however, will have an immediate, virtually dispositive effect on congressional election outcomes.
Cook’s fundamental principles should apply to Virginia’s referendum. Virginia’s only authority to establish congressional districts and determine their boundaries comes from the U.S. Constitution’s Elections Clause. And the Elections Clause does not allow a state to “dictate electoral outcomes” or “favor or disfavor a class of candidates.” Consequently, Cook likely bars states from including biased language intended to influence voters on ballots concerning congressional elections.
Referendum supporters had a First Amendment right to publicly declare that new, gerrymandered districts are needed for fair elections, and to attack the fairness of current districts. But under Cook, the ballot is different. Crucial. Unique. As the last thing a voter sees before casting his or her vote, the ballot is a categorically inappropriate and constitutionally impermissible forum for political messaging.
The referendum here came down to fewer than 90,000 out of more than three million votes. It is completely plausible that such a small percentage of the electorate was impermissibly influenced by the subjective, normative, politically charged declaration on the ballot that the proposed amendment would “restore fairness.” Accordingly, the referendum likely violates the U.S. Constitution’s Elections Clause, and the Virginia Supreme Court should set aside its results.
Michael T. Morley is Sheila M. McDevitt Professor of Law at the Florida State University College of Law and Faculty Director of the FSU Election Law Center.
