‘Restore Fairness’: Virginia’s Rigged Redistricting Referendum

Virginia Democrats got what they wanted Tuesday, or did they?

Voters narrowly approved a referendum (passing 51%) that hands the Democratic-controlled General Assembly the power to redraw congressional districts mid-decade, potentially flipping as many as four Republican House seats ahead of the fall midterms.

The ballot language put before Virginians read as follows: “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?”

Before you accept that “the voters have spoken,” ask yourself one question: were voters asked a “fair” question about election “fairness”? Before a fair outcome can be achieved, a fair process to achieve that outcome must first be put in place.

Read this phrase from the ballot again: “to restore fairness.”

Any researcher trained in survey and experimental methodologies will immediately recognize what happened here. Survey science has known for decades that question wording determines outcomes. Voters were not asked a neutral question but a leading one.

When a ballot question tells voters that a “yes” answer will restore fairness, it does something powerful and invisible: it presupposes that fairness has already been lost, and that voting “yes” is the correct and proper thing to do. Respondents are not being asked to weigh a policy tradeoff. They are being nudged with the full authority of official government language to see one answer as obviously right.

This is not a subtle effect. It is one of the most well-documented phenomena in the social sciences. Researchers call it “acquiescence” or “experimenter demand bias”: people are significantly more likely to agree with a proposition when it is framed in morally loaded, affirmative terms.

Add the word “fairness”—one of the most universally-valued concepts in democratic culture—to any question asked of voters, and you have a thumb firmly on the scale.

Remarkably, a Virginia circuit court judge saw exactly this. In February, Judge Jack Hurley Jr. issued a ruling blocking the referendum from proceeding, citing the phrase “restore fairness” as misleading and constitutionally problematic. He was right.

The Virginia Supreme Court overruled him on other procedural grounds and allowed the vote to proceed, but it explicitly reserved the right to revisit the question of the ballot language’s legality after the election. That review is still coming.

Think about what a neutrally worded question might have looked like: “Should the Constitution of Virginia be amended to temporarily transfer congressional redistricting authority from the bipartisan Redistricting Commission to the General Assembly?” 

That is what voters were actually being asked to decide. That is the accurate description of the policy change.

Notice how different this rewording feels to read. Its language requires voters to actually weigh the tradeoff, rather than simply affirm the universal value of fairness.

Democrats will argue that the “fairness” language reflects their genuine belief that Republican gerrymandering in Texas and elsewhere created an unfair national map that Virginia is entitled to counteract. That is a political argument that they are welcome to make in campaign ads, in speeches, and on yard signs. What they are not entitled to do is embed one side’s contested political framing into the official text of a constitutional referendum and present it to voters as neutral fact.

This is not a partisan issue. To be clear: this critique applies with equal force to either the Democratic or Republican political party that manipulates ballot language to predetermine the answer. The problem is not which party benefits. Instead, the problem is that biased language is being used in an election. Official government language should not be manipulated to serve as a campaign tool in a referendum. This action corrodes legitimacy, regardless of who does it.

Virginia voters in 2020 did something admirable: they approved a constitutional amendment removing redistricting power from the legislature and placing it in a bipartisan commission precisely to take partisan gamesmanship out of the process.

Tuesday’s referendum reversed that process, bypassing the very commission that Virginians had created. That reversal may or may not have been the right policy choice. But voters deserved to make it with clear eyes, not with a question that told them what the “fair” answer should be.

The redistricting battle now moves to the courts, where legal challenges to both the process and the ballot language remain active. Whatever the Virginia Supreme Court ultimately decides, the episode should prompt a broader conversation about ballot language standards.

Referendum questions are not campaign materials. They carry the imprimatur of the state itself, and they should be written by neutral parties, or at a very minimum reviewed by them, before being placed before voters.

When one party controls the legislature, controls the governorship, drafts the map, writes the ballot question, and funds the campaign to pass it, the word “voter” starts to lose its meaning.

Virginia Democrats won Tuesday. Whether they won “fairly” and actually “restored fairness” is a question that the courts have not yet finished answering.

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