by Dick Hall-Sizemore
The most recent meeting of the Virginia Redistricting Commission was marked by tension over the two most sensitive issues—incumbency and race. The meeting was supposed to be dedicated to viewing efforts of the two sets of partisan map drawers to come up with a single map for the Senate districts upon which they could agree. Instead, it was spent largely going over ground that had not been resolved regarding the development of majority-minority districts.
Mackenzie Babichenko, the co-chair whose turn it was to preside, started off the meeting by announcing that, in compliance with the statutory requirement of “political fairness,” incumbent addresses had been released to the map drawers. She went on to say that the map drawers had been advised that they could consider the data in drawing districts, but political fairness should have the lowest priority of the various criteria they had been given to consider.
At this point, both sets of map drawers recommended that, instead of the Commission examining the maps that were scheduled for presentation that day and making recommendations for changes, the map drawers be allowed to go back and prepare recommended maps, using the political data that had been released, including incumbents’ addresses. Otherwise, they might have to go back later and modify the changes made based on Commission members’ comments that day. The Republican map drawer referred to this as a ‘holistic” approach. The members seemed to agree with that reasoning.
After the presentation early last week by the map drawers of their first drafts of statewide districts, the Princeton Gerrymander Project, as reported by the Richmond Times-Dispatch, declared that the maps “would reduce the number of districts where minority voters have the power to sway the outcome.” There were two weaknesses in this analysis. First, it was based on estimates of voting age population and not actual 2020 census data. Second, it was premature because the map drawers had not been given the racially polarized voting data and had not attempted to incorporate that information into their configuration of districts.
Nevertheless, Greta Harris, the other co-chair of the commission and one of several Black members seized upon that analysis “showing we are going backward on majority-minority districts.” In an emotional speech, she asked, if we are giving the map drawers incumbent addresses, then “why the hell” are we not giving them direction on race during the “holistic” exercise of preparing the new maps. Invoking the memory of her parents, who had been disenfranchised for most of their lives, she declared, “I would strongly recommend that the commission give [the map drawers] guidance now, so we don’t waste another day ensuring that people who look like me have to wait to see if their vote is going to matter.”
Richard Harrell, a citizen member from South Boston in Halifax County, declared that all citizens have voting rights and warned that “moving people around on the basis of race,” to address retrogression could be a violation of the 14th Amendment. Ms. Harris replied that Virginia has a long, poor history regarding voting rights. She declared that Halifax County, Danville, and Pittsylvania County (she grew up in the Danville area), had one of the worst histories in which people like her were denied the ability to vote and that it was not a level playing field.
Perhaps stung by the shot taken at his home area, Mr. Harrell responded, “We just can’t go off on an emotional tangent and try to resolve issues from the past. That’s regrettable. That’s the past. We’re dealing with today.” He finished by saying that the Commission should be guided by the facts and the data.
Sen. Ryan McDougle (R-Hanover) offered a compromise. He pointed out that the 2011 redistricting resulted in 5 Senate and 12 House majority-minority districts. He proposed that serve as a baseline, with the map drawers instructed to attempt to draw maps with at least that many majority-minority districts. If they found they could not do so, using the Voting Rights Act criteria, they would need to explain the reasons to the Commission. Sen. William Stanley (R-Martinsville) supported that recommendation.
There was considerable discussion, some of it desultory. Both Republican and Democratic attorneys warned that the Commission should not include hard and fast, or set, numbers in any directions or guidance it provided to the map drawers. In the end, it was agreed that the attorneys and the map drawers, relying on the day’s discussion, had a sufficient sense of how the Commission wished them to proceed and would do so, while conferring with the co-chairs.
The Commission is now racing against the clock. The official deadline for submitting a plan to the General Assembly is October 10. However, the state constitution requires that “prior to voting on redistricting plans, the Commission shall hold at least three public hearings in different parts of the Commonwealth to receive and consider comments from the public.” Accordingly, the Commission has scheduled eight virtual public hearings over a period of four days, beginning October 4. One would think that, in order for the public to have something concrete upon which to comment, the Commission would need to have a semi-official set of maps upon which it had agreed by October 3. Right now, it has only two meetings scheduled between now and October 3 and it has yet to see any statewide maps with political and Voting Right Act data factored in.
A short discussion at the end of Thursday’s meeting illustrates the time crunch they are up against. Asked about what kinds of guidance they needed, the map drawers cited the example of Saltville, a small town in Southwest Virginia. The town sits astride the Smyth-Washington County border. One set of map drawers split the town along the boundary between the counties, placing the two parts in different Senate districts. The other set of map drawers, chose to split a county in order to put the entire town in the same Senate district. The members of the Commission spent about 10 minutes discussing which way to go. Ms. Babichenko declared she wanted to hear from the residents of Saltville their preference.
Project statewide this kind of decision that will need to be made, and this one is fairly straightforward, you can see how the commissioners will quickly be desperately trying to meet deadlines.
The upcoming week promises to be full of political drama. For political nerds watching it, it will be akin to being a pig in a mud hole.
Many readers of this blog, and much of the public generally, are opposed to the Commission using incumbent addresses as one of its criteria in deciding where to draw district lines. “Politicians picking their voters” is one of the main abuses that supporters of the Constitutional amendment were aiming to get rid of.
The Commission defends this decision by declaring that the Virginia statute requires “political fairness.” Gone largely unquestioned has been the implication that putting incumbents into the same district constitutes “unfairness.” If the district lines are drawn from scratch following the legal criteria of population, compactness, and the criteria of the Voting Rights Act, why would it be “unfair” if some of the resultant districts included the residences of two or more incumbents?
It helps to look at the entire statutory language (Sec. 24.2-304.04), not just part of it, as some commissioners tend to do. The statute provides:
“A map of districts shall not, when considered on a statewide basis, unduly favor or disfavor any political party.”
The justification seems to be that, because incumbents have an advantage in elections, any map, which puts more incumbents of one party at risk by placing them in the same districts than it does with the incumbents of the other party, “favors” the latter party. Of course, the statute provides that any favoring or disfavoring should be “considered on a statewide basis.” Inevitably, however, the decisions are going to be made on a district by district basis.
And, then there is that typically vague constitutional term: “unduly.” What constitutes “unduly” favoring or disfavoring? One strong argument is that, if lines are drawn using objective criteria such as population, compactness, and Voting Rights Act criteria and the results show two or more incumbents falling in the same district, there was no “undue” favoring or disfavoring of either party. If anything, such results are a manifestation of past gerrymandering.
There is another perspective. This would play out in a case in which two incumbents ended up in the same district, but, by redrawing the district lines slightly without violating population or compactness criteria, they would be in different districts. Sen. Barker illustrated how this could be done in the first draft Senate maps in which he ended up sharing a district with Sen. Chap Peterson. It involved moving around only 6 to 10 precincts, affecting only three proposed districts without resulting in outlandish district shapes. The Republican map drawer showed how moving just one precinct in two proposed Loudoun districts would move a Democratic incumbent out of a proposed district he otherwise would be sharing with another Democratic incumbent. The argument could go this way: in such situations in which the Commission failed to take action to separate “stacked incumbents,” and those actions would not result in violating any of the other criteria, it would be “unduly” disfavoring the party of the incumbents.
In reality, these arguments are moot. The Commission made the decision to use incumbent addresses. By doing so, it may end up making its final products more politically palatable to the General Assembly, but it only added complications to its deliberations.
One final note, in a follow-up to an earlier post regarding the court petition challenging the requirement that prison inmates be counted, for redistricting purposes, in the areas from which they came, rather than in the areas in which the prisons are located. Last week, the Virginia Supreme Court summarily dismissed the petition. The court cited largely procedural issues in its order. Basically, the court said that, although the petitioners were seeking a writ of mandamus, really what was applicable was an injunction and the court did not have original jurisdiction to issue an injunction. It is not unknown for courts to “hide” behind procedural issues when faced with sensitive political questions.