By Cody Mello-Klein | [email protected]
It’s only August, but politicians and advocacy groups are already starting to mount campaigns around a constitutional amendment that will appear on the Virginia ballot this fall and, if approved, would bring citizens into the state redistricting process for the first time.
Touted as the most significant piece of redistricting reform in Virginia history by its supporters, the amendment would wrest most control of the process away from the General Assembly, which has historically had complete authority over the drawing of Virginia’s congressional and state legislative boundaries.
Supporters say the amendment ends partisan gerrymandering, which has allowed the majority party to create politically advantageous boundaries that remain set for 10 years.
“It makes racial gerrymandering illegal under Virginia law for the first time in our history, and it adds transparency so that we can ensure the smoky back room is a thing of the past,” Brian Cannon, executive director of nonpartisan advocacy group OneVirginia2021, said.
If voters approve the amendment on Nov. 3, it would establish a 16-member Virginia Redistricting Commission. The commission would be composed of eight citizens and eight state legislators: four delegates and four senators with equal party representation.
Every 10 years, the commission would meet and, using the most recent census data, draw up district maps that would then go to the General Assembly for approval. The General Assembly would be able to vote to approve or reject the maps, not amend them. If there is a deadlock in this part of the process, the Virginia Supreme Court would step in to create a reapportionment plan.
Supporters of the amendment believe the plan that goes before voters in the fall will give people a voice in a process that has long been monopolized by legislators with partisan interests.
“For too long, every 10 years, we’ve had one party, depending on who’s in control, dominate over the other,” Sen. Adam Ebbin (D-Alexandria) said. “… It’s entirely appropriate that there be some measure of balance in drawing the districts to lead to more fair districts and transparency as the districts are drawn.”
“We elect people to represent us, but when it comes to those people representing us drawing their own districts, there’s a fundamental disagreement about how these districts should be drawn,” Cannon said.
Redistricting reform advocates have been pushing for an independent or semi-independent commission for years. The path to the ballot box has been defined by the very partisan maneuvering that supporters hope the amendment will curtail.
In 2011, reform advocates, skeptical that a constitutional amendment changing the redistricting process would pass under a Republican-controlled House of Delegates, opted to pursue a bipartisan plan. Gov. Bob McDonnell, a Republican, appointed a bipartisan citizens’ advisory committee that actually drew up new maps, but those plans fell prey to partisan politicking and were tossed in the “circular file,” Cannon said.
Advocates ended up organizing under the banner of OneVirginia2021 with the aim of pushing for reform in 2020.
The organization drafted an amendment with an all-citizens commission at its core. With Democrats in the minority at the time, Democratic Sens. George Barker and Dick Saslaw pushed instead for an amendment with the bipartisan, semi-independent commission that’s now a part of the plan that will go before voters in the fall.
In 2019, with the “Blue Wave” starting to approach, the General Assembly, which at the time had slight Republican majorities in both the House and Senate, approved the amendment in the Senate 39-1 and in the House by a 85-13 margin.
Democrats ultimately won control of both the House and Senate in November 2019. After capturing the majority, most Democratic delegates reversed their positions on the amendment.
In order for an amendment to be made to the Virginia constitution, a measure must pass both General Assembly legislative chambers in two consecutive years, then be approved by a majority of the state’s voters in a ballot referendum.
When the House voted on the amendment in March 2020, the amendment passed 54-46, with support from only nine Democratic delegates. The Virginia Democratic Party then voted to oppose the amendment during its June virtual convention.
The amendment has received support from former U.S. Attorney General Eric Holder, Sen. Tim Kaine (D-VA), Democratic Congressman Don Beyer, Obama Administration Civil Rights official Justin Levitt and every member of the state Senate’s Virginia Legislative Black Caucus.
Virginia Republicans have been largely supportive of the amendment, which they said would provide for a more balanced process, especially since Democrats control the General Assembly and could easily draw the lines in their favor.
“If we don’t redraw them fairly, then you’re going to have one side of the aisle go in there … with a calculator and a bunch of maps and they are going to get those lines as good as they can to make sure they have as much power as possible,” John March, spokesperson for the Alexandria GOP, said. “And that’s just shady. It’s shady politics; it’s blatant gerrymandering.”
Some critics of the plan believe the amendment does not do enough to ensure representation for racial and ethnic minorities in the redistricting process.
Historically, in Virginia, the redistricting process has been used to limit the power of Black communities by packing minority votes into as few districts as possible and underrepresenting those communities in the process. In 2011, two of the three maps the legislature drew were thrown out by the federal court for racial gerrymandering.
During the House of Delegates’ discussion of the amendment in March, many of the state’s Black delegates stated opposition to the plan, claiming it would allow for continued suppression of Black political representation.
The amendment itself includes language that supporters believe will protect historically marginalized racial and ethnic groups. Additional supporting legislation that was passed in May 2020 includes new criteria for district drawing that ensures protections for racial and ethnic minorities. The supporting legislation also ensures that incarcerated populations are counted for redistricting purposes in their permanent home districts, not where they are incarcerated.
“The important additional criteria that is worthy of enshrining in our constitution is the added protections for racial and ethnic minorities,” Cannon said. “That’s a huge part of what got through in the [amendment].”
Skeptical Democrats do not believe the amendment ends partisanship in the redistricting process. Some expressed concern that legislators, by virtue of their involvement in selecting the citizens on the commission, could still compromise the redistricting process laid out in the amendment.
Under the new process, the four legislative leaders – Senate President Pro Tempore Louise Lucas (D-Portsmouth), Speaker of the House Eileen Filler-Corn (D-Fairfax), House Minority Leader Todd Gilbert (R-Shenandoah Valley, Blue Ridge Mountains) and Senate Minority Leader Tommy Norment (R-James City) – would appoint two members each of their own caucus to the commission.
Those legislative leaders would also each make a list of 16 recommended citizens who would serve on the commission. Five retired circuit court judges, four of whom would be selected by the legislative leaders, would review those recommendations and select the final eight citizen appointees, four of which must come from the recommendations of each political party.
Del. Marcus Simon (D-Fairfax) opposes the amendment, arguing that the process still prioritizes legislators over citizens.
“The list of citizens is made by legislators, the list of judges that review the lists of citizens are appointed by legislators,” Simon said. “So, legislators are still really embedded throughout this process. I don’t think it accomplishes what its proponents say it will.”
An alternative plan, sponsored by Del. Marcia Price (D-Newport News) and supported by many House Democrats, would establish a completely independent citizen-led commission with 16 members, Simon said. Although Simon is confident the plan could get passed if voters reject the amendment, supporters of the current amendment are not so sure.
“The idea of a purely independent commission, it’s like some unicorn that we just can’t get right now [in Virginia],” Cannon said. “I hope we can do that in the next decade, but the votes aren’t there for that [right now].”
Sen. George Barker (D-Fairfax), who sponsored the amendment, said that the U.S. Constitution includes language that requires state legislators to be involved in drawing district maps.
“There will be challenges to some of the maps that are being put together in 2021 because there are some states that have citizen only commissions,” Barker said. “I didn’t want to go through all this effort to get this passed and have it thrown out by the Supreme Court.”
Alexandria’s state representatives have been divided over the amendment as well, with Sen. Ebbin supporting the plan and Del. Mark Levine (D-Alexandria) strongly in opposition. House Majority Leader Charniele Herring (D-Alexandria) also previously supported the plan only to vote against the amendment in March.
Alexandria’s delegates supported the amendment in 2019 when Democrats were the minority in the House of Delegates. However, Levine in particular has come down hard on the plan this year for not explicitly prohibiting gerrymandering.
In order to approve the maps and send them to the General Assembly, the commission needs supporting votes from six of the eight legislators and six of the eight citizens. Like other Democrats in the House, Levine is concerned that opposition party members of the commission could easily organize to veto any maps drawn by the commission.
“If any legislative leader can kill a commission, then it’s not an independent commission,” Levine said. “It’s an advisory commission. The commission is a fig leaf. It has no real power; it’s a front.”
Supporters of the amendment said that, in lieu of a completely independent commission without elected officials as members, bipartisan involvement in the process is necessary.
“It kind of goes to the fundamental point of, are you willing to have the other party have a seat at the table and, quite frankly, a veto in the process?” Cannon said. “Because if you aren’t willing to do that, then you’re not genuinely getting redistricting reform.”
The Virginia Supreme Court’s involvement in the process laid out by the amendment has also been a sticking point for Levine and other Democrats who oppose the plan.
If the commission cannot agree on a map in the time-frame allowed or if the General Assembly rejects the maps twice, then the state Supreme Court is authorized to come up with its own district maps.
Levine argued that a concerted Republican effort to deadlock the commission would cede control to the Republican-selected court.
“When the judges choose the legislators, who choose the judges who choose the legislators who choose the judges, it’s a never-ending loop and the people never get a say,” Levine said.
Barker countered that in most states, it is already typical for the state Supreme Court to redistrict if the legislature is unable to make a decision. He said that the Virginia Supreme Court judges have already proven their ability, in recent months, to rule in ways that run counter to the Republicans that put them in power.
“Once they’re judges in the state Supreme Court, they’ve clearly shown a desire to do what is right and what is in the public interest and what the law calls for rather than to make partisan decisions,” Barker said.
Barker also worked with other Democrats in the state House and Senate to craft a bill that would require the Supreme Court justices to select redistricting experts, one recommended by each party’s legislative leaders, if the decision came to the courts. That bill passed in the Senate and House in 2019 but was blocked in the House’s special conference committee after some delegates, including Simon, attempted to add an entirely new concept into the bill. Barker said he hopes to pass it during the 2021 General Assembly regular session.
Citizens will begin casting their votes on the amendment as soon as Sept. 19, when early voting begins in Virginia. Despite the schism in the Democratic party over the plan, supporters believe now is the time to push for a change that has been decades in the making and that gives citizens a voice in the redistricting process.
“You always want to go back to those original ideals of government of the people, by the people, for the people,” former Mayor Allison Silberberg, who served on the leadership council for OneVirginia2021, said. “This is part of that ideal, and we have to make it part of our reality. This will bring about good governance.”