In Virginia, legislatively referred amendments are the only form of statewide direct democracy available. The legislature has substantial control over how proposed amendments are submitted to voters. It may determine the manner in which a proposed amendment will be presented, including the election timing. However, the State Board of Elections prepares a “Plain English” statement describing each amendment that is published online and distributed to polling places. There is no explicit provision for judicial review, and the statutes make clear that failure to comply with requirements pertaining to the ballot question or “Plain English” statement will not affect an adopted constitutional amendment’s validity.
BACKGROUND INFORMATION
What forms of direct democracy are available, and when?
Statewide Ballot Measures in Virginia
Virginia does not have statewide initiatives or veto referendums but has legislatively referred amendments.
X Initiatives – Statutory
X Initiatives – Constitutional
X Veto Referendums
√ Legislatively Referred Amendments
An amendment to the state constitution proposed by the legislature must be approved by Virginia voters. Va. Const. art. XII, § 1.
Election Timing
A proposed amendment must first be approved by a majority of members of each house, in two consecutive General Assemblies. It is then submitted to the people in such manner as the legislature shall prescribe, at least 90 days after final approval by the legislature. Va. Const. art. XII, § 1.
In recent history, proposed amendments have been submitted at general elections.
BALLOT PREPARATION
What is included on the ballot, and who prepares it?
The ballot for a proposed constitutional amendment must contain:
- Ballot question.
See Va. Code Ann. § 24.2-615.
Virginia law is silent as to a ballot question’s contents and gives the legislature power to determine the manner in which an amendment will be submitted to voters. See Va. Const. art. XII, § 1; Va. Code Ann. §§ 30-19, 30-19.9.
INFORMATION TO VOTERS
What information is provided to voters before the election, and how?
Publication
The State Board of Elections must publish an “explanation” of each proposed amendment on its website, and in newspapers meeting certain circulation requirements. Newspaper publication is made twice: once in the week before the close of voter registration and again in the week before the election. Va. Code Ann. § 30-19.9. The contents of the explanation must be approved by the General Assembly and are described in further detail below. Id.
Voter Information Pamphlet
As noted, the State Board of Elections must publish an “explanation” of each proposed amendment. Va. Code Ann. § 30-19.9. An explanation must include:
- Ballot question. Code Ann. § 30-19.9.
- Full text of proposed amendment.
- Neutral statement on proposal written in “plain English” (500 words or less).
- The statement may briefly describe effect of “yes” and “no” votes but cannot include any arguments submitted by proposal’s sponsors or opponents. Id.
- “Plain English” means statement must be “written in nontechnical, readily understandable language using words of common everyday usage” and avoiding legal and other terms with specialized, technical meanings. § 30-19.10.
The explanation is first drafted by the Division of Legislative Services in consultation with other agencies, including the Attorney General, as appropriate. Va. Code Ann. § 30-19.9. It is approved by the first General Assembly then referred to the next General Assembly, which must approve it “for distribution as to form and content.” Id.
The State Board of Elections must distribute the explanation to county registrars for placement at each registration site and polling place. Id.
JUDICIAL REVIEW
When and how can the court step in?
Virginia’s direct democracy provisions do not explicitly provide for judicial review of ballot contents, and such review is limited by the clear discretion given to the legislature under Virginia law. Further, Virginia Code Annotated § 30-19.9 makes clear that failure to comply with its requirements pertaining to explanatory materials—including a ballot question—does not affect the validity of a constitutional amendment.
Sample case: Goldman v. State Bd. of Elections, No. 201067, 2020 WL 5498497 (Va. Sept. 9, 2020) (dismissing petition for writ of mandamus against State Board of Elections alleging that ballot question for proposed constitutional amendment was misleading; finding Board had no role in determining ballot question language and would not have a clear duty to reject it even if defective).