By Brandon Martin
During the last election, a majority of Virginians supported a constitutional amendment that created a commission which will be responsible for drawing congressional and state district maps for the Commonwealth.
The timing of the amendment holds significant weight since the census numbers collected last year must be used when redrawing districts in Virginia. This means the effectiveness of the commission will immediately be put to the test and that could have an impact on the races for seats in the House of Delegates.
The commission will consist of eight legislators from both parties, along with eight civilians, one of whom will serve as the chairman. Applications for the civilian members are currently being taken and retired judges from lists provided by both parties will be appointing them.
The eight legislators have also been announced and they include Dels. Delores McQuinn, D-Richmond; Marcus Simon, D-Falls Church; Les Adams, R-Chatham; and Margaret Ransone, R-Westmoreland. The commission also includes State Sens. Mamie Locke, D-Hampton; George Barker, D-Fairfax, Ryan McDougle, R-Hanover; and Steve Newman, R-Lynchburg.
The Virginia Press Association recently held a discussion with a panel with three of the members and Rebecca Green, a law professor and co-director of the Election Law Program at William and Mary Law School, to discuss the commission and how redistricting will change in Virginia.
“States around the country have really woken up to the problem of gerrymandering,” Green said. “The problem is legislators, using sophisticated software and granulated data have gotten really good at drawing lines to protect their seats. This results in the popular refrain that legislators pick their voters instead of the other way around.”
Green said the concept of gerrymandering has often been used to diminish the voting power of minority communities.
To fix the problem, she said that many states have implemented independent commissions that completely removed the responsibility of drawing congressional and state district lines from legislators and solely empowered the citizenry to complete the task.
“Virginia voters lack the ability to do this because our state constitution doesn’t allow voters to pass laws directly,” Green said. “Instead, to amend Virginia’s constitution, the legislatures have to pass the amendment language in two consecutive legislative sessions and then voters have to pass it at the ballot box. Involving the legislatures in the reform essentially rendered it impossible to take the power to draw the lines completely away from the legislature. That’s why Virginia has this sort of hybrid commission where there are half legislators and half citizens.”
Green said she also saw the addition of more transparency in the process as a “win” for the residents of Virginia.
In previous attempts for the public to access information about redistricting, she said litigants were denied because “legislative privilege protected that information from being released.”
Before the vote on the amendment, Democrats were the main opposition to the creation of the commission.
While his side of the isle is in favor of “fairer districts and less political influence in gerrymandering,” Simon said the opposition was because “we would have preferred an independent commission that was not a hybrid model. We really wanted to get legislators further out of the process.”
With the constitutional amendment, he sees the prospect of a completely independent commission in the future as “highly unlikely.”
With additional legislation, Simon says he believes the commission can “work really well.
“Under the plain language of the amendment, by itself, you run the risk that you would have had eight legislators and eight non-legislators who are good friends of legislators on the commission,” Simon added. “Now we are requiring them to have letters of recommendations, we’ve said you can’t have lobbyists or former lobbyists, you can’t have political hacks. So I’m optimistic that we are going to get the best we can out of the structure given some of the guardrails that we’ve put in place with the enabling legislation.”
Barker, one of the architects of the amendment, discussed why legislators are still part of the commission.
“The goal wasn’t necessarily to eliminate legislators. The goal was to make the best districts and the fairest districts that we can have drawn that would be good for Virginia as a whole and be good for the citizens of Virginia,” Barker said. “There was a concern that the activists who were most involved in advocating for the independent commission were overwhelmingly Democratic. There was a clear concern among the House Republicans that if we went with that type of system that we would end up getting maps that favored Democrats.”
There are extra precautions put in place to ensure that the hybrid commission won’t be politically weaponized, according to Barker.
“We not only had it split 8-8 between the legislators and the citizens, but also required supermajorities with six of the eight for both legislators and citizens to be able to pass any map,” Barker said. “So, the legislators cannot dictate to the citizens and the citizens cannot dictate to the legislators. With there being four Democrats and four Republican legislators, neither party can dictate to the other party what the districts are going to be.”
Even though Republicans have historically been opposed to redistricting reform, there was more support for the amendment this year.
“In general, when you have a constitutional amendment that goes before the people and it comes out with 2.7 million Virginians saying, ‘we want to go in this direction,’ that’s a pretty strong message,” Newman said, adding that it accounted for about 66 percent of voters. “I think it is a very, very solid proposal.”
Even with the new system, questions remain about how district lines will be drawn with the initial data from the 2020 census.
“There is some idea that this is sort of an ‘etch a sketch’ and we will just shake it up, erase all the lines and apply these criteria by starting from scratch,” Simon said. “I think that is going to be one of the first decisions that we are going to have to make. Do we take into account incumbent addresses or not? Do we do as little as possible to the existing districts to meet the new criteria or do we start with a blank map?”
“I think the idea of throwing everything out might leave some citizens in the lurch because they would have to familiarize themselves with new candidates and new coalitions so there is kind of a good government reason to not scrape all the lines and not start from scratch,” Green said.
Another challenge for the commission will be the timing between the release of census data and next year’s primary and general elections.
“It’s really just New Jersey and Virginia that have to draw maps very quickly this year to be able to have those new districts in place for the 2021 elections,” Barker said, adding that only three other states have odd-year elections. “We almost certainly will not have the census data by the beginning of March. It’s most likely that we will have the census data sometime in April.”
Due to the time crunch, Barker said extra language was included into the amendment that requires the commission to produce the district maps within 45 days of receipt of the census data.
“If the data were in by April 15, that would mean by late May then we would have the maps drawn,” Barker said. “We don’t have to do a pre-clearance. The governor doesn’t have a role in this process so there is not a possibility of a veto. Once the commission has done it (drawn the maps), then it’ll go back to the General Assembly for an up or down vote.”
Simon added that delays could arise if the General Assembly downvotes a map, requiring the commission to continue to draw new ones.
Additionally, he said, “any two of us” on the commission “could decide we don’t like how these maps have turned out at all” and “we could veto the map.”
Green noted that the commission could get “a lot of the work” done in advance of the release of the census numbers.
“You can spend a lot of time talking to Virginians about where they think their community boundaries are and where the communities of interest are delineated,” she said. “You can also get a feel for what they like and don’t like about the current lines. Then you’d be, presumably, more ready to go once the numbers do eventually come out.”
Even if there is a delay in the most recent census data, there has been preliminary data gathered in 2019 which hints at where some of the population shifts have occurred in Virginia.
“Northern Virginia is the only area of the state that will pick up much of anything at all,” Barker said. “Historically, Northern Virginia in 1940 had 1.5 Senate seats. This year, we will be up to 12 probably.”
Barker said the Fredericksburg area has also shown some growth as well.
“Northern Virginia will basically pick up two House seats, and either three-quarters or four-fifths of a Senate seat,” Barker added. “No other area, besides a tiny area in Fredericksburg will pick up anything. The losses are all along the Southern border of Virginia. All the way from Hampton Roads to Southwest Virginia.”
Barker said the losses in Hampton Roads, Southside and Southwest Virginia will be proportional to the gains in Northern Virginia.
