Virginia redistricting ballot measure could still be struck down after voting, experts say

A contentious ballot measure in Virginia that could reshape the state’s congressional maps in favor of Democrats is facing a series of legal challenges that experts say will not be resolved even after voters cast their ballots. Virginians are set to vote April 21 on a state constitutional amendment that would temporarily allow the legislature […]

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A contentious ballot measure in Virginia that could reshape the state’s congressional maps in favor of Democrats is facing a series of legal challenges that experts say will not be resolved even after voters cast their ballots.

Virginians are set to vote April 21 on a state constitutional amendment that would temporarily allow the legislature to redraw the state’s congressional districts before the 2030 census. Supporters say the move is necessary to counter mid-decade redistricting efforts by Republican-controlled states nationwide, while those against the measure argue the proposal is itself a partisan attempt to redraw Virginia’s map in Democrats’ favor ahead of the midterm elections, skewing representation for a state home to millions of Republicans.

One of the referendum’s critics is Adam Kincaid, executive director of the National Republican Redistricting Trust, who noted that “the ballot language is deceptive in the sense that it’s saying that it’s restoring ‘fairness.'”

“The Virginia Supreme Court has said they’re taking all these challenges and they’re taking briefing on them, and then they’re not going to decide anything until after all the votes have been cast,” Kincaid told the Washington Examiner.

Out of the numerous lawsuits against the measure, one challenge filed by Republican state Reps. John McGuire and Robert Wittman targets the wording of the language on the ballot question itself, arguing that proposing to voters that the partisan maps are to “restore fairness” misleads them about the substance of the amendment. Another lawsuit has challenged whether the legislature had the authority to begin pursuing the redistricting plan prior to the vote on the amendment.

“So it’s still a live challenge,” Kincaid said. “If any one of these different things sticks, then it would invalidate the referendum.”

The Virginia Supreme Court earlier this month cleared the way for the referendum to proceed while litigation continues. While a lower court previously struck down the amendment, the justices emphasized they were not ruling on the amendment’s legality itself, but rather allowing the election to take place first.

Michael Morley, a law professor at Florida State University who studies election law, told the Washington Examiner that the ballot measure’s phrasing could raise constitutional concerns due to a Supreme Court precedent requiring governments to remain neutral when presenting choices tied to congressional elections.

In its 2001 decision in Cook v. Gralike, the Supreme Court ruled that states cannot attempt to influence congressional elections through ballot design that favors or disfavors candidates.

“The issue with Cook,” Morley said, is “that by using normative language about restoring fairness, the [ballot measure] seems to be putting its weight behind one position on the issue rather than representing it to voters in a neutral fashion.”

Morley said the Virginia referendum presents a novel question because it is not itself a congressional election but directly affects how congressional elections will be conducted.

“This ballot measure isn’t immediately a congressional election,” Morley said. “But it directly impacts the outcomes of congressional elections. It’s closely tied to determining those outcomes.”

Because of that connection, Morley said courts could potentially apply the same neutrality principles to ballot language that affects congressional redistricting.

Morley also noted that any constitutional dispute tied to the elections clause could ultimately reach the Supreme Court after review by the Virginia courts.

Meanwhile, Kincaid said additional legal troubles surrounding the maps themselves could also complicate the amendment’s future.

“One thing the Virginia amendment did not do was repeal or otherwise revise the compactness requirements within the Virginia Constitution,” Kincaid said, adding that the proposed districts are “very, very not compact.” Compactness refers to the geographic makeup of districts, including whether districts are twisted and stretched to ensure they are friendly to one party over the other.

He also pointed to procedural issues about whether the legislature has the authority to redraw maps before the amendment formally takes effect.

“If it manages to pass, it still is going to have a lot of legal hurdles that the Virginia Supreme Court’s going to have to contend with,” Kincaid said.

The political stakes are significant. Analysts say a successful redraw could net Democrats as many as four additional House seats.

The amendment has also attracted heavy spending from national political groups. The Washington Examiner reported on Monday that Virginians for Fair Elections, a committee backing the referendum, raised more than $21.3 million in outside funding in less than a month. Much of that money flowed through nonprofit advocacy groups that do not disclose their donors.

Opponents of redistricting, organized under Virginians for Fair Maps, have raised considerably less, reporting roughly $2.8 million over several days in early March.

A central dispute that is still playing out in court is over the language that Virginia voters will read when they head to the polls to vote on redistricting. Although efforts to stop the measure from appearing on the ballot on April 21 have failed, the state Supreme Court has already said the legal determination of whether the amendment is constitutional will be decided in court after voting has taken place.

Public polling suggests the proposal currently has narrow support among Virginia voters. A January survey from the Wason Center for Civic Leadership at Christopher Newport University found that 51% of registered voters backed the amendment, while 43% opposed it and 7% said they were unsure.

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The poll revealed sharp partisan divisions. About 63% of Democrats supported the proposal, while 61% of Republicans opposed it. At the same time, 63% of voters said they approve of the way Virginia currently handles redistricting, underscoring the mixed public sentiment surrounding the plan.

Robert Schmad contributed to this report.