Now The House of Delegates Map Must Change

VPAP map showing 11 districts rejected by the court this week, and others likely to change along with them. An interactive version is linked.

The predominant consideration in a legislator’s mind in any effort to draw legislative districts is first, will I get re-elected and second, will enough of my friends get elected or re-elected so we can form a gang and control this place?  The third consideration is can we get this plan signed by the governor and (in Virginia) get it approved by the federal guardians of the Voting Rights Act?

Compactness, contiguity, community of interest – a strong stand in favor of those works well in campaign speeches. Close the doors and turn on the mapping software, however, and they’re back to numbers one, two and three. The third consideration, federal approval, may now leap to number one.

No piece of legislation has been more important to the rise of the Republican Party in the Old South than the Voting Rights Act, because with the creation of every “minority-majority district” the surrounding districts also change demographically. The South’s (and not just the South, by the way) racist efforts to suppress African-American registration and to draw districts that cracked, stacked and packed them to further dilute their political power brought a just and powerful retribution. The impact on black representation was strong and immediate, but so were the corollary benefits for Republicans.

In 1991 the Republicans were the minority in the Virginia House and were victims of a gerrymander. The only effective challenge put up was a GOP complaint to the U.S. Department of Justice involving the House seat then held by the late C. Hardaway Marks of Hopewell, parts of which could have been used to create a new minority-majority district next door. It was so ordered and Marks’ seat went red.

The 1991 plans on both sides created substantially more black majority districts and were the first legislative plans to maximize Section 5 compliance as then interpreted. Within a decade the GOP controlled both chambers. There were many reasons but the Voting Rights Act played a role.

Live by the sword, die by the sword. Judicial interpretation of Section 5 of that federal law is changing. A couple of years ago a federal court redrew Virginia’s congressional seats, effectively replacing Republican Randy Forbes with Democrat Donald McEachin. Now comes a 2-1 U.S. District Court ruling that as many as 33 of 100 House of Delegates seats need to be redrafted because the Republican mapmakers used a fixed 55 percent minimum for the black voting age population (BVAP) in 11 specific districts held by Democrats. The one-seat GOP majority in the House is now even more tenuous. (VPAP has done a marvelous map and the interactive version is here.)

The opinion and the dissent run to 188 pages, but the parts of the majority decision I read boil down to these sentences: “The state has sorted voters into districts based on the color of their skin” and speaking of the consultant used by the GOP: “Insofar as he sought to obtain partisan political advantage by splitting (precincts) in particular ways, he did so by relying on race as a proxy for political preference.”

Given the black voting patterns these days, which may be even more set in stone now than 40 years ago, it is hard not to see that as proxy. What has changed in 40 years is white voting patterns.

Since the initial passage of the Voting Rights Act, Virginia has elected one African-American governor, has twice elected an African-American lieutenant governor, and has twice voted for an African-American for president. The justification for the Voting Rights Act Section 5 requirements in the first place was a strong pattern of racial voting among white voters, strong enough that no black candidate stood a chance unless the district was tailored for his or her success. That is not today’s Virginia.

The ground was already shaky under that foundation by 1991, with Governor Douglas Wilder on the Third Floor and then-state Senator Bobby Scott of Newport News winning in a 65 percent white district. Neither Scott nor Wilder passed on the chance to demand 1991 plans with more minority-majority districts, however, and Republicans in the Senate cooperated with that desire and negotiated a map equally beneficial to them.

Reading the new district court majority opinion, the presumption that African-American candidates need that demographic boost still binds the action of the legislature, and the plan adopted certainly provided it. The problem was uniform reliance on that 55 percent minimum target, which was chosen after careful analysis of the voting patterns in just one legislative district – the rural Southside district held by Del. Roslyn Tyler of Jarrett.

The court accepted the arguments of the plaintiffs that every district needed its own analysis, and many could produce a district open to a black candidate winning with far less than a 55 percent BVAP. It noted that the Tyler district’s results were skewed by the presence of large non-voting prison populations, and by the fiercest pattern in the state of racial pattern voting by its white citizens.  The mandate to the General Assembly is go back and reevaluate all 11 other districts individually, change their lines and those of surrounding districts, and get it done by Halloween.

What wonderful timing for Democrats defending their U.S. Senate seat against a GOP challenger who might have interesting comments to make on the role of federal courts and the wisdom of the Voting Rights Act. That mandate and deadline will be appealed but now that is complicated by the coming period of a 4-4 Supreme Court until a new justice is approved and sworn.

Odds are very good this ruling will stand and the General Assembly will have a new House map for the 2019 election containing several Republican-held districts with higher numbers of African-American voters. Permissible “proxy” or not, the partisan impact is predictable.

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10 responses to “Now The House of Delegates Map Must Change

  1. I’d say the two judges on the majority opinion are “shit-class” renegade judges who don’t know the law. In the case of Bethune-Hill v. Va. State Bd. of Elections, 137 S.Ct. 788, 802 (2017) the Supreme court wrote: “The law cannot insist that a state legislature, when redistricting, determine precisely what percent minority population § 5 demands.” Alabama, 575 U.S., at ––––, 135 S.Ct., at 1273. The question is whether the State had “good reasons ” to believe a 55% BVAP floor was necessary to avoid liability under § 5. Ibid. (internal quotation marks omitted). The State did have good reasons under these circumstances. Holding otherwise would afford state legislatures too little breathing room, leaving them “trapped between the competing hazards of liability” under the Voting Rights Act and the Equal Protection Clause. Vera, supra, at 977, 116 S.Ct. 1941 (internal quotation marks omitted).”

    It continued on the same page “Yet reducing the BVAP below 55% well might have that effect [of reducing black voters’ ability to elect their preferred candidate] in some cases. The record here supports the legislature’s conclusion that this was one instance where a 55% BVAP was necessary for black voters to have a functional working majority.”

    What happened is Democratic judges ignored the Supreme Court in an attempt to gerrymander the General Assembly into Democratic control. That is one of the reasons why the 1689 English Bill of Rights included the personal right to bear arms.

    • I don’t think there would be any dissent on the court if you resort to that course of action…so please don’t! You probably have read all this more closely than I have, but are you not citing the Supreme Court’s acceptance of the 55 percent target for Tyler’s 75th District? If all was copacetic why did the Supreme Court remand the case back down for further review of the other 11 districts drawn to that same 55 percent target? My biggest problem with the majority opinion is is just ignores the always-messy nature of this process and blows off testimony that the Republicans had lots of balls in the air at the same time. As I said, self-preservation first and party-control second.

      • Steve – the job of an appellate court is to review the decision of a subordinate court but it does not take over the case. The case is then sent back to the lower court for further proceedings that comply with the appellate decision.

        I’ve read a number of cases over the years that say a mere majority of black voters in a district is insufficient to ensure black voters can elect a candidate of their choice. Stacking districts with say 60 or 70% black voters is often overturned as excessive. But 55% seems reasonable. Like I wrote this is about Democratic judges being good Democrats.

        Self-preservation is always number one. After the 2010 Census, I was appointed to the Fairfax County Advisory Committee on redistricting the Board of Supervisors. Our chair was Kate Hanley. One of the first things she advised us was to make sure we weren’t creating districts the incumbents would not like. We had a wide variety of people on our committee. And a number of us submitted some creative plans. But the three that were ultimately recommended to the BoS did not create districts that the incumbents would not like.

  2. So this new map will be drawn later this year, probably after further proceedings in a lower court, and presented to the GA in January 2019 for implementation in November 2019? That’s tight!

  3. There is another piece to the gerrymandering story. It certainly has been part of our history throughout the country but whst happened immediately after the Obama election in 2008 was ”most important to creating the Republican majority which by 2012 was a guaranteed Republican majority in the US House until 2020 regardless of the public will.” It was called the REDMAP and the story is written in “RATF++KED” by David Daley.

    It was completely legal, created voting maps to assure Republican victories using computers and voter numbers etc. out of an office in Richmond supported by Karl Rove, Ed Gillespie and Chis Jankowski. It was launched with $30 million, meaning it also relies on Citizens United and corporate donations run wild. Funny … the first Gerrymander occurred in1788 in VA when Patrick Henry tried to get rid of Madison.

    The districts drawn are crazy. REDMAP was very successful and the Dems had their own response though not as well done. REDMAP 2020 was created based on that success. Don’t know how to fix it … to make districts based on actual representations of neighborhood interest, not numbers of party voters. The color issue remains a part of it all as the racial divide, and other social issues, show up in the party vote. Third parties anyone?

    • But let’s not forget the state senate redistricting after the 2010 Census was conducted by a Senate with a Democratic majority. A Democratic senator friend of mine told me the map was gerrymandered for the Ds as much as the GA House and US House was gerrymandered for the Rs. Also, the US House districts of Gerry Connolly and Jim Moran were tailored to their needs.

      I find it telling that the Ministry of Enlightenment and Propaganda never saw problems with Democratic gerrymandering, only Republican. For years during the 1970s and 80s, national Republican voting for House candidate was much higher than the percentage of seats won by GOP candidates. But its only unconstitutional when the opposite happens. There’s a special place in hell for many journalists.

  4. 2010 was the first year of the REDMAP and the initial goals were capturing state houses so that the additional work could be passed for the next elections. Targeted states included PA, NY, Mich, Ohio and Nc…and won control in all.

  5. No computer program can assure a partisan outcome but a well-drawn map down to the street and alley level can sure better the odds. I suspect the consultant the R’s used here in Virginia and central to this case, John Morgan, was heavily involved in that. I worked closely with him in 1991 and it was like a graduate seminar in politics and demographics. My little team worked up House and Senate maps districts using Excel to do the math – the Dems would not let me as staff to the minority get my hands on the good equipment at Legislative Services. When I hear their hypocritical whining these days my response is – you still have not gotten what you deserve. Not a single one of them will stick by those principles the minute they have the power back. I don’t know about love or war but all is fair in redistricting. 🙂

    But not my job any more….

  6. I am not sure the parameters of a “fair” district map could be defined ….It seems like “I’ll know it when I see it” is the definition.

    Re the REDMAP. It was Chris Jankopwski who dreamed up the idea and served as Executive Director starting in 2010. Karl Rove even wrote an editorial in the WSJ about the idea. “There are state legislature races that will determine who redraws congressional district lines after this years census, a process that could determine which party controls upwards of 20 seats and whether many others will be competitive.”
    Evidently Rove understood that to secure “those 20 seats would save the GOP $100M over the next decade,” according to the book’s author David Daley.

  7. Pingback: Decisions on a New House Plan May Start Today - Bacon's Rebellion

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