by Dick Hall-Sizemore
(Author’s note: This is the second installment of my reporting and comment on the Virginia Redistricting Commission. Warning — it is long. I apologize for the length, but it seemed best for interested readers to have a fairly thorough summary of the Commission’s doings up through the end of August in one place, rather than breaking it up in pieces.)
The story of the Virginia Redistricting Commission so far is one of two battles. One is the partisan struggle between Democrats and Republicans. One side does not trust the other. The other battle is the effort of citizen members to ensure that the process does not become one in which legislators devise districts to suit their own interests. This effort ran into opposition from legislators, primarily, but not solely, the Republican legislators.
The partisan split was made clear from the beginning. At its first meeting, in an obviously orchestrated move, Sen. Ryan McDougle, R-Hanover, moved that the commission elect co-chairs, one from each party. Sen. George Barker, D-Fairfax, seconded the motion. Del. Marcus Simon, D-Fairfax, declared it a great idea. There was no mention that the state constitution provision establishing the Commission stipulated the election of “a chairman” (emphasis added).
The constitution also stipulates that the chairman be a citizen member. In complying with this provision, the members unanimously elected as co-chairs Mackenzie Babichenko, an assistant Hanover County prosecutor, from the Republican-nominated citizen members, and Greta Harris, from Richmond and president/CEO of the Better Housing Coalition, from the Democratic-nominated citizen members.
The Commission later established two subcommittees and designated Republican and Democratic co-chairs of each one.
The question of hiring attorneys for the Commission was fought over several meetings of the relevant subcommittee and in one meeting of the full Commission. The question was whether to hire one attorney to represent the full Commission or to hire two sets of attorneys, one from each partisan perspective. The arguments boiled down as follows:
- Neutral attorney to advise commission members on legal aspects related to districts
- Commission would be the client. An attorney would be representing the interests of his client, regardless of his/her own partisan perspective.
- Taxpayer funds should not be used to pay for attorneys to represent partisan positions.
- Citizens expected a nonpartisan process; having attorneys representing each party would make it seem too partisan.
- One attorney giving advice would be much less stressful than having two sets of attorneys perhaps giving conflicting advice.
Two sets of attorneys
- There is no such thing as a neutral attorney in redistricting. All attorneys with experience in the area have worked for one of the two parties.
- It is not a nonpartisan process, but, rather, a bipartisan one.
- Each side needs to feel that someone is providing them the information they need to understand the implications of a map.
- Having an attorney for each side would make it easier to be able to explain the maps to the respective General Assembly caucuses.
- It does not make it a partisan process; the attorneys would just give each party’s perspective.
It was clear from the discussions that there was a stark difference of opinion concerning the role of the attorneys. For those arguing for a single attorney, the role was one of “giving advice over core principles and legal parameters” and not on where to draw the lines. Sen. Barker, a strong proponent of each side having its own attorney, seemed to agree that it was not the role of the attorneys to draw the lines. However, when he went on to argue that everyone needs to feel “comfortable” and that “some people would not be comfortable with a lawyer perceived as being from the other side,” it is plain that he saw the lawyers as being involved in the drawing of the lines.
The Commission voted, 10-4, to hire two sets of lawyers, one for each partisan side. It was a bipartisan vote. All the Republican citizen members supported it, along with two Democratic senators, Barker and Mamie Locke, D-Hampton. Opposing it were three Democratic citizen members and one Democratic legislator, Del. Simon. One Democratic citizen member had indicated when she had to leave the meeting before the vote was taken that she supported having just one attorney. Del. Delores McQuinn (D-Richmond) was not at the meeting.
Subcommittees for Maps
The two subcommittees used for administrative issues had been carefully balanced: each had four legislators (two senators and two delegates) and four citizen members, all composed of four Republicans and four Democrats. The Commission co-chairs proposed the creation of two subcommittees for the map drawing — one for the House district map and one for the Senate district map — with the same basic composition.
Most legislators objected strenuously. They argued that all the House members should be on the subcommittee drawing the House maps and all the Senate members on the subcommittee drawing the Senate maps. They argued that all the members of each house needed to understand and support the plan for their respective house. The opponents of that arrangement contended that it would be like the legislators were choosing their own voters.
The proposal to have each subcommittee include two members from each house failed, 7 to 8. Voting in favor were three of the Democratic legislators, three of the Democratic citizen members, and one Republican citizen member (Babichenko, one of the co-chairs). All the Republican legislators, plus Sen. Barker, and three of the Republican citizen members opposed it. (One Democratic citizen member was absent. Based on his comments throughout the prior meetings, he probably would have voted for it, making for a tie vote. However, a motion fails on a tie vote.) As a result of the impasse, the members conceded the full commission would have to consider each map from the beginning without subcommittees.
Similar divisions broke out over the use of political data in drawing the maps, specifically voting histories of precincts and addresses of incumbents.
The proponents of the use of such data leaned heavily on a statute passed by the 2021 General Assembly: “A map of districts shall not, when considered on a statewide basis, unduly favor or disfavor any political party.”
One interpretation of the provision is the intent to prevent overt partisan gerrymandering, such as strangely misshapen districts, intentional drawing of districts that include the residences of more than one incumbent of the same party, or the drawing of a district that isolates an incumbent from his main base of support.
One could argue, as some did, that, if the Commission drew House and Senate maps without considering any political data, but which were compact, contiguous, in compliance with the “one-man, one-vote” rule, and were in compliance with the provisions of the Voting Rights Act to protect minority groups, the resultant maps would not, by definition, “unduly” favor one party over another. However other members of the Commission chose to ignore the words “considered on a statewide basis” and “unduly” and argued that the maps had to be politically neutral. Sen. Barker stated flatly that “any map that favored either party is not going to get out of the Commission.”
No one asked what “politically neutral” meant. If the partisan split in the current House of Delegates is 55-445, does “politically neutral” mean that any map must be constructed so that there are 50 districts leaning Democrat and 50 districts leaning Republican? From one perspective, it would seem that such a map would favor the party that is currently in the minority.
The debate over using incumbent addresses was laughably transparent. The proponents argued that , if the addresses were not considered, the maps could end up having two incumbents of the same party in the same district and, in order not to favor one party, they would have to go back and reconfigure the districts to remedy that situation. Left unchallenged was the argument that blindly putting incumbents, either of the same or different parties, in the same district would be, de facto, “unduly” favoring one party. Sen. Barker even argued that, because “we [the legislators on the Commission] know where each other lives,” not using incumbent addresses would give the legislators an unfair advantage over the citizen members. (I would be surprised if, for example, Sen. Newman knows exactly where in Fairfax or Hampton that Senators Barker and Locke live.)
The Commission voted 9-6 to allow consideration of incumbent addresses. Sens. Barker joined all the Republicans. (One Democratic citizen member was absent.) The vote to allow political data (voting history) was not as close, and more bipartisan, 11-4, with only Del. Simon and three Democratic citizen members opposed.
After the fight over having two sets of lawyers, the biggest fight was over how many “map drawers” to have.
Despite some of the legislators, Sen. Barker in particular, saying at the outset, “we can draw the lines,” it soon became apparent that the Commission would contract with someone with the technical expertise to do the work of actually producing maps showing district lines at the precinct level. As with the attorneys, the question came down to one map drawer or two sets of map drawers , one for each “side.”
The attorneys were charged to come up with recommendations they would agree on and report to the Commission. The Republican attorneys said they had considered many names proposed by their Democrat counterparts, but none of them could be considered neutral. Therefore, they proposed that each side have its own map drawers and recommended a specific individual for the Republican side. This individual had worked on the 2011 House map. (Later in the discussion, Del. Simon characterized him as a “gerrymander master.”)
The attorney for the Democrats, on the other hand, advocated the use of a single map drawer. They recommended the Commission use the University of Richmond Spatial Analysis Lab to do the work. They felt that, never having worked for either party, the organization could be perceived as impartial. Although the organization had never worked on drawing redistricting voting maps, it had done geographic data studies, including some on redlining. In addition, the UR group had been recommended by the Cooper Center at UVa.
The Republicans objected. The Republican lawyers pointed to UR’s lack of experience with redistricting and said there may be a perception of partiality due to its redlining studies. Sen. McDougle said that he did not have the same “comfort level with the nonpartisan nature of an academic institution” that the Democrats seemed to have. Other Republican members of the Commission said that, if a neutral map drawer existed, the “ unicorn” as they called it, they would be willing to engage it, but since their lawyers objected to using the UR group as a single map drawer, they could not go along.
The motion to contract with the UR group as the single map drawer failed, 8 to 8, on a straight party-line vote. The lawyers for the Democrats then said they would recommend a map drawer that had worked with Democrats in the past.
Several members of the Commission, especially Greta Harris, the Democrat co-chair, expressed exasperation at this turn of events and wondered aloud how it was going to work having two competing sets of map drawers.
The last major issue to be decided upon was the starting point for drawing the maps. Should the map drawers start from scratch or should they use the existing voting district boundaries and make incremental changes?
There was not a lot of open debate on this issue. Democrats pointed out that, in the public hearing s and public comments, there had been overwhelming support for starting from scratch. Del. Simon warned that, if the Commission did not do that, it would need to be prepared to answer why it had not done so.
Probably sensing the political winds, Sen. Barker proposed a compromise: the map drawers would produce two maps — one drawn from scratch and one using existing district lines as a starting point. That motion failed, 7 to 9, with Republicans Sen. McDougle and co-chair Babichenko voting against it and Democrat Sen. Barker joining the remaining Republicans in supporting it. The final vote to scrap the old maps and start from scratch passed, 12-4, with one Democrat (Barker) and three Republicans (Thornton, Adams, and Newman) opposed.
One of the fundamental issues dividing the legislators and the citizens is the ultimate goal of the Commission. Most of the legislators feel they need to produce election district maps that would get adopted by the full Commission and by both houses of the General Assembly. Senators Barker and Newman are the legislators most vocal about this goal. Newman frequently uses the analogy of “landing the plane.” The most vocal citizen members basically take the position that their job is to produce maps that are fair and meet legal criteria. If they fail for political reasons, so be it. One citizen member pushed back on Newman’s analogy by saying his definition of “landing the plane” may be different from the Senator’s.
One of the over-arching goals of the new process that has been expressed by its proponents is more public transparency than has existed in the past, to bring the process out “from the back room.” The constitutional amendment requires that “all meetings of the Commission shall be open to the public” and “that all records and documents of the Commission … including internal communications from outside parties shall be considered public information.”
The meetings of the Commission have been available on-line alive and have been recorded to be available to folks like me who have come along afterwards.
Members were instructed at the beginning of the process that they should not talk to anybody outside the Commission about redistricting issues.
At the August 23 meeting, the co-chairs dropped a bomb. They announced a new “protocol” that would govern the remainder of the Commission’s deliberations. As Ms. Harris explained it, they wanted to make sure that that all members received the same information at the same time. Therefore, the members could communicate with the attorneys and map drawers only in a public meeting. Ms. Babichenko added that the members could submit to the co-chairs in writing any ideas or questions for dissemination to everyone for consideration.
The Republican members erupted. Sen. Newman said he “fundamentally” disagreed. He contended that individual members should be able to talk to counsel or the map drawers. Del. Adams voiced concern about the “practicality” of restricting members from speaking to the map drawers or counsel. Mr. Harrell protested that, at the outset of the process, members were assured they could ask questions of the attorneys.
In response to Mr. Harrell, Ms. Harris explained that some members of the Commission had had discussions with the partisan attorneys that the rest of the members were unaware of and that needed to stop. (Sen. Barker had commented twice in the meetings that he had talked to the Democratic counsel about issues.)
Left unsaid were the obvious reasons for the new policy. It would prevent something like the following, strictly hypothetical, scenario. Legislator A to map drawer: Under these proposed lines for my district, my opponent from my last election, in which he almost beat me, lives in a precinct that is on the edge of the district. Please move that line there so that precinct would be in the adjoining district, rather than mine.”
After some discussion, Ms. Harris said that they had deliberately labelled the new directive protocol and they (the co-chairs) believed they had the ability to implement it and that it was not subject to a vote.
Another, related, major goal of the proponents of the constitutional amendment was enabling the public to participate in the redistricting process.
The Commission has gone to great lengths to enable the public to participate. There is a public comment period after each meeting and citizens can submit written comments on the Commission website. The Constitution requires, “Prior to proposing any redistricting plans and 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.” The Commission has scheduled 16 public hearings — eight before it received the census data and eight after the plans are complete and before they are voted on. Half of the hearings are in-person and half are virtual. Finally, the Commission has contracted with private vendors to assist in enhancing citizen engagement.
Based on member comments at meetings, public comment has influenced at least two of the members’ actions. The first was a determination to avoid splitting local jurisdictions to the extent possible. The other was, as already noted, the scrapping of the existing maps and starting with a blank slate.
It remains to be seen how much the public at large either cares or participates. It seems that some members are betting on there not being any widespread interest. In response to one citizen member’s worry about public outcry to an issue, Sen. Barker was caught by Graham Moomaw of the Virginia Mercury on an open mike during a break saying, “Actually they won’t. It’s actually a fairly small segment of the public that is working on this issue. … There’ll be some complaints here and there. There always are.”
The Commission is on a tight schedule. The constitutional provision requires the Commission to submit redistricting plans for the House and the Senate to the General Assembly no later than 445 days following the receipt of census data and no later than 60 days for Congressional districts.
The Commission has determined August 26 as the date on which it had usable census data. With that as a start date, the deadline for submittal of General Assembly plans would be October 10 and October 25 for Congressional maps. However, the plans would have to be completed sometime before those deadlines to allow for the required public hearings before the final Commission vote.
That tight schedule just got tighter. The Commission was scheduled to meet on August 30 to begin preliminary work with the recently received census data. However, one member informed the Commission that he/she had tested positive for COVID-19 following the August 23 meeting. As a result, the August 30 meeting was canceled and a virtual meeting scheduled for September2 at which no votes would be taken.
First of all, the members of the Commission deserve a lot of credit for the time and effort they are putting into the exercise. Their first meeting was in January. Beginning at the end of March, the full Commission met every two weeks until mid-August, when it began to meet weekly. Scattered in there were meetings of the subcommittees and public hearings. September and October promise to be even more intense.
Up until July 1, the meetings were virtual, which helped considerably as far as their time commitment was concerned. After July 1, however, a change in the law became effective and there has to be at least a quorum in person for a meeting to take place.
Based on the comments and discussions in the meetings, it is apparent that the two sets of lawyers are in charge of the map drawing on the respective sides. The constitution stipulates that internal communications and communications from the outside parties with any individual or group “performing delegated functions of or advising the Commission” is public information. Furthermore, as addressed earlier, the individual members are not supposed to contact the attorneys or map drawers on their own. Nevertheless, the skeptic or the cynic in me would not be surprised if party leaders have been poring over the census data and have been in touch either with the respective attorney/map drawer teams on the Commission.
Having staffed and participated on large legislative/citizen committees, I will be fascinated to see how a 16-member commission, composed of some outspoken individuals with strong viewpoints, tries to meld or reconcile competing maps from the partisan attorneys and map drawers, especially when these maps deal with data at the voting precinct level on a statewide basis.
With all that being said, whatever comes out of this process will be a better product for the Commonwealth as a whole than what resulted in the past.
Virginia Redistricting Commissions meetings