Home 2020 Elections Letter to AG Herring: Case Law Suggests Redistricting Referendum is Misleading

Letter to AG Herring: Case Law Suggests Redistricting Referendum is Misleading


By Josh Stanfield of Activate Virginia

Yesterday, former Democratic Party of Virginia Chairman and 2021 Lieutenant Governor candidate Paul Goldman sent a letter to Attorney General Mark Herring discussing the redistricting constitutional amendment on the ballot this November. This letter comes a day after Goldman wrote Chris Piper, Commissioner of the Virginia Department of Elections, on the same topic.

Here’s a copy of the letter to AG Herring in which Goldman makes the case that the November 2020 ballot language is misleading:

4 August 2020

The Honorable Mark Herring
Attorney General of Virginia
202 North Ninth Street
Richmond, Virginia 23219

By email

Dear Mr. Attorney General: 

This letter brings to the attention of the Office of the Attorney General an unconstitutional action of the General Assembly in need of immediate correction. Back in 1998, I likewise brought to the attention of the Attorney General, along with other state elected and appointed officials, an unconstitutional action of the General Assembly. At first, then Attorney General Mark Earley refused to get involved. But he soon realized I and others had indeed identified an unappreciated violation of the Constitution of Virginia. He then took the action ultimately needed to protect the public interest and convince the General Assembly to rescind their unconstitutional pay raise without requiring a formal Supreme Court order. A similar collegial resolution on this new 2020 matter can likewise be achieved. 

This time, due to the difference in the nature of the unconstitutional action at issue – to wit, misleading Referendum language – the letter includes not merely pointing out the constitutional deficiencies but also useful references to numerous court decisions from many jurisdictions. The continuing legacy of the Byrd Machine includes a deep bias against statewide referendums, instituted in large measure to prevent progressive citizen-led challenges to their segregationist policies. Therefore, it is not surprising to have found little guidance in Virginia Supreme Court decisions relative to the specifics cited in this letter. 

Fortunately, other states long ago rejected the anti-referendum bias implemented in that prior era. Their cases are not of course presented as having any precedential case law authority in our Commonwealth. But rather as a demonstration of a broadly held view across the country as regards the right of citizens to an informed vote on ballot questions, as opposed to wording skewed by misleading ballot language that might unfairly alter the outcome. 

In that connection, the General Assembly is asking voters this November to approve substantive constitutional changes to Article II, Section 6 along with approving a new Article II, Section 6-A. While Article XXII, Section 1 authorizes the GA to put the entire text of both proposals on the ballot, the GA chose to put one ballot question to the people covering both actions. My analysis of the ballot question language will demonstrate, to any objective reviewer, the misleading nature of the Referendum wording as a matter of constitutional law. 

The language chosen by the GA to describe its proposals read as follows in its entirety: 

“Question: Should the Constitution of Virginia be amended to establish a redistricting commission, consisting of eight members of the General Assembly and eight citizens of the Commonwealth, that is responsible for drawing the congressional and state legislative districts that will be subsequently voted on, but not changed by, the General Assembly and enacted without the 

Governor’s involvement and to give the responsibility of drawing the districts to the Supreme Court of Virginia if the redistricting commission fails to draw districts or the General Assembly fails to enact districts by certain deadlines?” See Chapter 1071 of the Acts of Assembly for the 2020 Session. 

This language has at least 7 serious problems for anyone who believes in a Virginian’s constitutional right to cast an informed ballot. This misleading verbiage would not pass muster in any number of states.

In Ex parte Tipton, 229 S.C. 471 I1956), the court said “Respondents suggest, however that whatever defect or insufficiency may have existed on the ballot was cured by the fact that the full text of the proposing resolution was posed in each voting place as required by (state law). We do not agree. It is the ballot, not the posted notice which the voters come into direct contact.Id at 79 (Emphasis added). Indeed the “reasonable assumption is that he reads the question proposed on the ballot and that his vote is cast upon his consideration of the question so worded.” Id citing Keenan v Price, 68 Idaho 423 (1948). This is not an isolated view. “Because voters will not have the actual text of the amendment before them in the voting both when they enter their votes, the accuracy requirement (of the Florida Constitution) is of paramount importance for the ballot title and summary.” Armstrong v. Harris, 773 So. 2d 7, 13 (2000) (Emphasis added). 

Moreover, the standard of honest, transparent, referendum language is not merely a mandate limited to what is included in the ballot wording. “The problem, therefore, lies not with what the (ballot) summary says, but, rather with what it does not say.” Askew v. Firestone, 421 So. 2d 151, 156 (1982). (Emphasis added). The concurring opinion in this case explains the importance of honest, fair language. “Nothing in the government of this state or nation is more important than amending our state and federal constitutions. The law requires that before voting a citizen must be able learn from the proposed question and explanation what the anticipated results will be.” Id (Emphasis added). The Ohio Supreme Court in Markus v. Bd of Elections, 22 Ohio St 197 (1970) said “(i)t is only from the ballot statement that the ultimate deciders of the question can arrive at an efficacious and intelligent expression of opinion. The ballot must fairly and accurately present a statement of the question or issue to be decided in order to assure a free, intelligent and informative vote by the average citizen affected.Id at 203 (Emphasis added).

Accordingly, the basic law of fair transparent referendum language cases seems clear. If the ballot language is misleading to voters, it is a fatal legal problem, not correctable by posting the entire text of the constitutional changes and additions at issue at the polls, publishing the full text in newspapers, posting on the web, or correcting misleading ballot language through the type of “explanation” pamphlet used in Virginia. While I have not found a Virginia case discussing this precise issue of misleading statewide ballot language, there is no reason to believe our Courts, if presented with this issue, would come to any other conclusion given Article I, Section 2 of the Constitution of Virginia. The people are deemed sovereign on all matters regarding proposed changes and additions to the Constitution, not the politicians. Moreover, if I may be permitted a personal observation based on my years of working to move Virginia forward with Henry Howell, Doug Wilder, Chuck Robb, Mark Warner, Tim Kaine among others: given the importance of redistricting to those long left out and locked out of public office, I cannot imagine how a Democratically controlled General Assembly and state government could possibly condone misleading Redistricting Referendum language when the General Assembly will be in Richmond two weeks from now and can easily correct such deficiencies. 

Having laid out certain useful general legal parameters, let me discuss 7 specific problems caused by the misleading ballot language.

  1. BALLOT LANGUAGE OMITS THE CHANGES TO ARTICLE II, SECTION 6. The entirety of the relevant substantive changes proposed by the GA for this section are as follows: “Every electoral district shall be drawn in accordance with the requirements of federal and state laws that address racial fairness, including the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and provisions of the Voting Rights Act of 1965, as amended, and judicial decisions interpreting such laws. Districts shall provide, where practicable, opportunities for racial and ethnic communities to elect candidates of their choice.” Self-evidentially, the ballot question language contains no mention of these changes in redistricting criteria. In this connection, Markus, supra, favorably cited the lower court opinion on the issue of ballot language omissions. “It ought to be free for any misleading tendency, whether by amplification or omission.” Id (Emphasis added). Forty-two years later, the Ohio Supreme Court had occasion to consider this matter as regards a constitutional amendment concerning redistricting. The Court said that “if, as here, the ballot board approves a condensed test of the proposed constitutional amendment, any omitted substance of the proposal must not be material…its absence must not be material, i.e. its absence must not affect the fairness or accuracy of the text (citation omitted).” State ex rel. Voters First v. Ohio Ballot Bd, 133 Ohio St. 3d 257, 265 (2012). The Court then went on say “(w)e conclude that the ballot language approved by the board omits material provisions concerning the commission-member selection process and the commission’s criteria for redistricting.” Id. (Emphasis added). “By omitting the substantive criteria for redistricting that would be applied by the Commission, the ballot language…fails to adequately inform the average voter of the precise nature of the proposed constitutional amendment.” Id at 268. (Emphasis added).


  1. HAVING LEGISLATORS ON THE REDISTRICTING COMMISSION MAY VIOLATE THE “SEPARATION OF POWERS” DOCTRINE. As a constitutional matter, this principle is enshrined in Article I, Section 5 of the Constitution of Virginia. Eight current General Assembly members will be on the proposed Redistricting Commission, half the membership. This raises a “separation of powers” issue. The precise nature of Commission’s legal status in that regard is admittedly murky. But the lack of clarity only highlights the constitutional doctrine.


  1. THE BALLOT LANGUAGE OMITS ANY REFERENCE TO THE NEEDED SUPERMAJORITY. Currently, a majority vote of the General Assembly enacts the required decennial redistricting maps. But under the proposed new Article II, Section 6-A, it will now take a supermajority of the Commission to act. Indeed, 3 sitting legislators of either party can block a redistricting plan favored by all 8 citizens and the other 5 legislators. The failure of the ballot language to alert voters to such a new, unprecedented math raises troubling constitutional issues given that the new proposed math is fundamentally different than the long standing existing legislative math. In resolving a challenge to the language of a charter change proposed for the city of Houston, the court found the wording could mislead voters because the “city did not adequately describe the chief features – the character and purposes of the charter amendment on the ballot. By omitting the drainage charges, it failed to substantially submit the measure with such definiteness and certainty that voters would not be misled.” Dacus v Parker, 466 SW 3d 820, 829 (Tex. Sup. Ct). The court found the “ballot stated that the amendment would create a pay-as-you-go fund for drainage and streets improvements. But the ballot did not identify a central aspect of the amendment: the drainage charges to be imposed on benefitting real property owners across the city. Such charges imposed on most residents of Houston are a chief feature of the amendment…(m)erely stating that a fund is being established (omitted) something important to the people – will they directly pay for it?” Id at 826 (Emphasis added). A chief feature of what the GA is proposing – taking away the right of the people to elect the representatives who will do the redistricting by majority vote of said elected representatives and give this huge power to an appointed group whose actions require a supermajority – appears nowhere in the ballot wording. If the Commission operated by a majority rule, then omitting any reference to existing majority rule might be considered not misleading. But here we are going to a system whose unprecedented math would not be assumed by any normative voter casting a ballot on the Referendum. The Dacus analysis is consistent with all the other courts saying, “though voters are presumed to be already familiar with measures before reaching the voting booth, they can still be misled by an incomplete ballot description.” Id at 825-826 (Emphasis added). In Wolf v Myers, 173 P. 3d 812 (Or. Sup. Ct En Banc 2007), there is a discussion of how the word “SUPERMAJORITY” needed to be used in the context of describing a statewide Referendum on a proposed change to the Oregon Constitution. Voters were being asked to change from the current practice to a new constitutional approach where a 60% majority would be required in certain matters. One of the issues the Court discussed was whether the new 60% constitutional standard applied to the percentage of the vote required to approve a measure, or merely the need to have at least a 60% turnout in the applicable election. Id at 814. The Court found the use of the term “SUPERMAJORITY” in the title of the ballot question required a rewrite to ensure voters would properly understand the new 60% standard they were being asked to approve. The Wolf analysis would therefore find the proposed GA ballot question misleading for self-evident reasons: the proposed November Referendum language fails to alert voters to the creation of a new supermajority math, much less spell out its effect even minimally on future redistricting policy. In the Matter of Lenihan v Blackwell, 209 A.D. 1048 (NY. App. Div. 4th Dept. 1994), the issue of changing the vote requirement went in the other direction as the proposal was “amends the Erie County Charter, which requires a two-thirds vote to increase the sales and use taxes in Erie County, by permitting approval by a simple majority of the Legislature.” Id. But the ballot question language prepared by local officials failed to “mention(s) the change in the vote requirement.” Id. The Court said any proposition on the ballot “must state concisely and clearly the purpose and effect of the proposed amendment (citations omitted).” The Lenihan court found local officials had tried to mislead unsuspecting citizens since the “proposition (did) not meet those requirements because (it failed to) inform the voter that the proposed amendment alters the voter requirement on sale and use taxes.” Id. Admittedly local officials had also tried to mislead voters in other ways. The Court found that too. But the opinion, at minimum, makes clear the right of a citizen to an informed vote on a ballot question and the need for jurists and public officials at all levels to protect that right.


  1. THE BALLOT LANGUAGE OMITS ANY REFERENCE TO THE QUALIFICATIONS OF THE “CITIZEN” MEMBERS. By design, Article II, Section 6-A does not list any such qualifications, leaving the development of the criteria to a future act of the General Assembly. The unsuspecting voter will likely believe a majority of such “citizen” members will be independent of the usual partisan political structure. But as written, all 8 “citizen” members could be political party officers or former state legislators! There is no requirement of even one independent member. See State ex rel. Voters First, supra


  1. THE BALLOT LANGUAGE DOESN’T PROVIDE ANY DETAILS ON HOW AN INDIVIDUAL GETS ON THE REQUIRED LIST TO BE CHOSEN AS A “CITIZEN” MEMBER. The proposed constitutional language makes clear all 8 “citizens” must come from lists compiled by political leaders of each major party in the General Assembly. This is not what the unsuspecting Virginia voter will assume, as the General Assembly fully knows. Id. See State ex. rel. Voters First supra.


  1. THE BALLOT LANGUAGE OMITS ANY REFERNCE TO HOW THE “CITIZEN” MEMBERS ARE CHOSEN. In my reading of the cases on redistricting, the method of choosing the citizen members is considered important information for the voters to know. While the 8 are to be chosen by a committee of presumably non-partisan retired judges, these jurists will be required to pick 2 individuals from each list provided by 4 top General Assembly partisan lawmakers. This not what the unsuspecting Virginia voter will assume. This type of omission caught the eye of the Ohio Supreme Court in State ex rel. Voters First supra. “The board’s approved ballot language…calls for a 12-member commission that is politically balanced in its composition, with four members from each of the two largest political parties and the remaining four members not affiliated with those political parties.” Id at 266. That was a necessary salient point for the ballot language. “But” the Court pointed out, “the approved ballot language says nothing about who will be selecting the commission members. It is axiomatic that “[w]ho does the appointing is just as important as who is appointed (citations omitted).” Id (Emphasis added). The court concluded that by “not including, at a minimum, who would be selecting the commission members” the language “fails to properly identify one of the key elements of the proposed constitutional amendment.” Id.


  1. THE BALLOT LANGUAGE IS MISLEADING AS TO THE ROLE OF THE JUDICIARY. The ballot question says, “the responsibility of drawing the districts to the Supreme Court of Virginia if the redistricting commission fails to draw districts or the General Assembly fails to enact districts by certain deadlines?” The General Assembly knows in a Southern state, redistricting maps inevitably require the approval of the United States Department of Justice and the federal courts, often the U.S. Supreme Court. This is not mentioned in the ballot language. At first blush this did not seem a big red flag. But then I remembered: the ballot language intentionally omits any reference to the changes proposed for Article II, Section 6 which references federal legislation and case law. As Yogi Berra famously observed, some things are too coincidental to be a coincidence. In that connection, the decision in Nevada Judges Ass’n v Lau, 910 P. 2d 898 (Nev. Sup. Ct. 1995) indicates the importance of attention to detail when changes to existing Constitutional provisions are the subject of a Referendum. In Nevada, the ballot question asked “(s)hall the Nevada Constitution be amended to establish terms limits for state and local public officers?” Id at 903. The ballot language specifically detailed the total years such officers could serve except for judges. The ballot language merely said “(j)ustices of the Supreme Court, justices of the peace, and all other judges would be limited to two (2) terms.” ID. Thus, as the court declared “(0nly) judicial positions receive no explanation in terms of total years of service.” ID. The court found this insufficient notice to voters as to the change from the existing constitutional provisions as regards the Judiciary. Admittedly the Nevada decision to overturn the Referendum language and require a different ballot form and language presentation rested mainly on a flawed decision to use one ballot question to cover all those categories of public officials since citizens were forced to cast an all-or-nothing vote on a variety of individual categories. But the analysis in the opinion related to the Judiciary highlights the vigilance required to ensure a fair and informed vote of the citizenry whenever changes or additional to the Constitution are at issue. 


Whatever good the General Assembly may believe will come from their proposed Constitutional handiwork, the ends can never justify the means. In my view, several of the 7 points above standing alone would render the ballot language misleading as a matter of law. Some may disagree. But surely any objective reviewer, taking all 7 into consideration, will conclude the ballot language creates a misleading referendum as a matter of law. 

In Boucher v. Bomhoff, 495 P. 2d 77 (Alaska Sup. Ct. 1972), the ballot question read as follows: “As required by the Constitution of the State of Alaska Art. XIII, Section 3 Shall there be a constitutional convention?” Id at 78. The wording seems fair, and plain enough right? “At the general election held on November 3, 1970, the proposition set out above received an affirmative vote.” Id.

But the results were challenged on the grounds the ballot wording had been constitutionally misleading and could have biased the close election result. The Court agreed. “The prefatory language suggests that the constitution requires that a constitutional convention be held, when in fact it requires only that a referendum be held on the question of whether there shall be a constitutional convention. The implication of the prefatory language is that a constitutional convention will be held as required by the Alaska Constitution unless the voters reject the holding of a convention.” Id at 82.

Admittedly the decision in Boucher essentially revolves around a unique provision in the Alaska Constitution not found in the Constitution of Virginia as regards a state constitutional convention and in addition, the recognition of post-election survey research findings that might not be allowed as evidence in Virginia. But as with the other cases cited above, Boucher is presented to point out what is missing in the Commonwealth right now, namely the need to be open to a full discussion on the potential of conducting an election skewed by misleading ballot wording. 

Fortunately, this can be avoided. The General Assembly will be returning to town in a few weeks for a special session. Based on the 1998 example, I believe leaders of the General Assembly will be open to agreeing to follow their counterparts’ 1998 example and fix the misleading language if requested by the appropriate state elected and appointed officials. 

In that connection, the jurists in all the many states cited above have made it rather easy to fix the problems and ensure a fair, informed, accurate referendum vote. 


Paul Goldman


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