Redistricting: Partisan Fighting Continues

Virginia Supreme Court Building

by Dick Hall-Sizemore

The diabolical person who came up with the framework for the state constitutional amendment establishing a redistricting commission was not content with designing it so that it would fail due to partisan wrangling. He also injected partisan politics into the phase in which the state Supreme Court must come up with the plans.

If the commission cannot agree to plans to be submitted, the task falls to the Supreme Court. State law requires the Court to choose two special masters to assist it in developing the plans, one each from lists of three submitted by the leaders of each of the two political parties in the General Assembly. Among other requirements, the persons appointed by the Court shall have the “requisite qualifications and experience to serve as a special master and shall have no conflicts of interest.” The Republican list includes the following:

  • Thomas Bryan, a former statistician for the U.S. Census Bureau, who founded a demographic analysis consulting firm for bipartisan clients, including expert witness services in state and local redistricting cases. He received $20,000 in consulting fees from the Virginia Senate Republican Caucus.
  • Adam Kincaid, previously the redistricting coordinator for the National Republican Congressional Committee and now the executive director of the National Republican Redistricting Trust, an arm of the National Republican Committee. This is the organization former Republican Rep. Tom Davis used to draw a map of new Congressional districts for submission to the Virginia Redistricting Commission.
  • Adam Foltz, who served as primary redistricting map drawer for the Wisconsin State Assembly Republican Caucus during the 2011-2012 cycle and prepared Wisconsin’s defense against court challenges. He is now a legislative analyst for the Texas Legislative Council and is working on drafting maps for that state.

The Democrat list includes:

  • Bernard N. Grofman, a professor of political science at the University of California, Irvine, who served as a special master to federal courts in drawing congressional districts in 2015 and the Virginia House of Delegates districts in 2018.
  • Nathaniel Persily, a professor at the Stanford Law School who has served as a court-appointed special master for state legislative and congressional maps in other states.
  • Bruce E. Cain, a professor at the School of Humanities and Sciences at Stanford University who served as a court-appointed special master to draw state legislative districts in Arizona in 2002 and has been a redistricting consultant to government agencies including the Attorney General of Maryland.

As could have been predicted, partisan warfare has broken out again.

Democrats have cried foul. Sen. Richard Saslaw, D-Fairfax, the Senate majority leader, has written to the Supreme Court accusing the three special masters nominated by the Republicans as having “disqualifying conflicts of interest” and urging the Court “to reject the minority leaders’ nominees and direct them to resubmit new, unbiased nominees.”

Republicans have not responded formally to the letter, but, when the Democrats first complained publicly, the spokesman for the Republican Senate Caucus, adopting a page from the Jim Bacon playbook, dismissed the Democrats’ nominees, saying “they’re all college professors. Can you name another profession in this country that has a higher level of support for the Democratic party?”

My Soapbox

I don’t know anything about the backgrounds of the Democrats’ nominees for special master, except what I have read in press reports. They may have leanings toward Democrats; however, each one has been appointed, in the past, as a special master by a court. Presumably, those appointing courts had confidence in their integrity and ability to remain neutral in redistricting matters.

On the other hand, the Republicans were brazenly partisan with their special master nominees. It is an openly cynical approach to the Supreme Court’s role in redistricting. As the Senate Republican spokesman commented, “Neither side is going to put forward individuals that they think are not going to do a fantastic job for them.”

The Supreme Court Justices are probably saying to each other, “What did we do to deserve this?”

Here is my advice to the Court: Appoint the special masters as required by law and give them a deadline, no more than a month, to agree on maps to the submitted to you for your consideration. The Congressional districts should have first priority, because the current members of Congress should know as soon as possible what their new districts are going to look like. If the special masters fail to meet the deadline, borrow a staff member from the Division of Legislative Services who is familiar with the map-drawing software and draw the maps yourselves.

A significant number of citizens drew district maps and submitted them to the Virginia Redistricting Commission for consideration. The Commission commented on the quality of several of them. If they could do it, I have faith that you Justices could do it.


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Comments

22 responses to “Redistricting: Partisan Fighting Continues”

  1. LarrytheG Avatar

    That’s a pretty fair description of the situation IMHO and probably WAY different than if JAB or Haner had given their version!

    So some could accuse the Dems of being “sneaky” maybe and I’m sure GOPpers would but you really can’t give much if any benefit of the doubt to the GOP picks – as brazen as can be, chutzpa out the wazoo!

    Pretty high stakes even with the gerrymandering muted.

  2. Nancy Naive Avatar
    Nancy Naive

    We have to stop. We have to alleviate the courts of these political decisions and processes lest we create the appearance of, or worse the actual, politicization of the courts.

    If we continue to force the courts to become the law-crafters and decision-makers, rather than simply the arbiter of the legality of legislative and executive processes relative to existing law, we risk our democratic system in favor of “royal” declarations.

    The selection and appointment of judges will eventually devolve from evaluating appointee’s knowledge and skill of applying the law to ideology. We cease to have judges who were appointed by the Democrats or the Republican to judges who are Democrat or Republican.

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      I agree entirely. That has been one, if not the most, unfortunate development over the last 10-15 years. It has seeped into Virginia politics. Probably the main objection of the members of the General Assembly Black Caucus and some other Democrats to the proposed constitutional amendment was that redistricting could land with the Supreme Court, which they viewed as partisan because most had been elected by Republican majority legislatures.

      1. Nancy Naive Avatar
        Nancy Naive

        It starts with a poorly worded statement of the problem. It should have been “Provide X number of citizens with representation subject to geography, social, economic, diversity, and then political constraints,” as opposed to “Provide political representation subject to current representation, number of citizens, geography, social, economic, and diversity contraints.”

        My opposition to the admendment was the forgone conclusion of a court solution based on the fact that the process was predestine by design to devolve to partisan bickering as opposed to a bipartisan or nonpartisan decision process.

        What would have helped would have been a phase in the amendment similar to “the committee shall not consider current representation.”

        1. LarrytheG Avatar

          re: ” based on the fact that the process was predestine by design to devolve to partisan bickering as opposed to a bipartisan or nonpartisan decision process.”

          Some might say it was a ruse designed for rubes from the get go………..

          Not unlike the attempt to deregulate electricity in Va. It was designed to fail, and now the standard reply is that “we tried that, and it did not work”.

          Same deal here. “We’ve tried it, and it failed, so back to the way we used to do it”, which was the goal all along in my very skeptical humble opinion.

          1. Eric the half a troll Avatar
            Eric the half a troll

            You won’t see any action out of the Republican legislators to improve or repeal the amendment. It worked perfectly in their opinion.

          2. Nancy Naive Avatar
            Nancy Naive

            Duplicity is not an attribute of any specific party, but it does appear that way at times.

          3. LarrytheG Avatar

            exactly and precisely… it was from the get-go a ruse for those willing to believe that kind of process would succeed.

            I saw it for that when the question was on the ballot – the wording was such that my first reaction was “are you serious this will happen when partisan elected will agree to a process?”.

            Then it dawned on me that it actually WAS designed to fail as a process after voters approved it. So now back to business as usual – force it to the courts and if you lose, appeal it and keep on.

            https://ballotpedia.org/Virginia_Question_1,_Redistricting_Commission_Amendment_(2020)

          4. Dick Hall-Sizemore Avatar
            Dick Hall-Sizemore

            I don’t think any legislator, Republican or Democrat, wanted to the process to get to the court. After all, the Court will probably not be nearly as intent on protecting incumbents.

          5. Eric the half a troll Avatar
            Eric the half a troll

            The single possible positive to come from this whole debacle… however, given that the alternative was for Dems to draw the lines, Republicans were indeed hoping for this outcome. I hope it backfires on them…

    2. LarrytheG Avatar

      100% yes and already happening.. I don’t see how it gets fixed.

  3. Peter Galuszka Avatar
    Peter Galuszka

    Hey Dick. Here’s something from my latest gig. Peter

    https://www.virginiamercury.com/2021/11/12/virginia-supreme-court-rejects-map-drawers/

    1. LarrytheG Avatar

      ALL 3! Good article Peter!

  4. DJRippert Avatar

    Supreme court justices tend to be a lot less partisan and predictable than people believe. The Virginia Supreme Court (just today) disqualified one Republican special master and demanded the Republicans provide a list of another three possible special masters without conflicts of interest by Monday.

    Overall, the Virginia General Assembly is hopelessly corrupt. Unlimited campaign contributions are only the tip of the iceberg. Virginia’s ridiculous redistricting history was just another chapter in the General Assembly’s Book of Grift. While the redistricting committee was doomed to fail the Virginia Supreme Court is not. They immediately correctly addressed the Republican list of special masters.

    Does ANYBODY believe that the Supreme Court’s redistricting will be more partisan than would have been the case if the redistricting was done by the General Assembly? In corrupt Virginia small progress is the best anybody can hope for.

    1. LarrytheG Avatar

      re: ” Does ANYBODY believe that the Supreme Court’s redistricting will be more partisan than would have been the case if the redistricting was done by the General Assembly?”

      Ask the GOP after the judge rules against them. Wait for it.

      1. DJRippert Avatar

        The judges (justices actually, I think) have already ruled against them. The state Supreme Court will be a whole lot more fair than the General Assembly. The redistricting amendment will work to the betterment of Virginians.

        1. LarrytheG Avatar

          Given the litigation theses days on these issues, I wonder if the Va SCOTUS is the final and last word…. Further , you can bet your sweet bippy that if the GOP takes the Va Senate – all bets are off ……..

          I don’t know the answer – all roads lead back to the GA…. and whoever is in power will not support anything that tips the scales to the other side.

          Voters are essentially hostages to the two parties who control and easy to see, neither of them really want what is best for voters and citizens but rather what is best for their party.

          This is why I DO support citizen-initiated referenda. It does have risks so it must be curated and have a high bar for signatures.. but at the end of the day – without it – citizens and voters are mostly pawns in the process which is that bad old “Virginia Way” some of us rail bitterly about.

          1. Dick Hall-Sizemore Avatar
            Dick Hall-Sizemore

            Any map the the Virginia Supreme Court must be in compliance with the “one man, one vote” principle and the provisions of the federal Voting Rights Act. Thus, they are subject to challenge in federal court on those grounds. Concerning any provision of state such as not unduly providing an advantage to any political party, I would think any map the Court produces will be the last word. After all, how do you challenge something the Supreme Court has produced?

          2. LarrytheG Avatar

            And I have no doubt, the Va GOP is headed to the SCOTUS after the Va courts do their thing and rule against them.

            There seems very little restraint on litigation on these issues these days and SCOTUS seems more inclined to not take cases and let them fester… especially the ones that are partisan and controversial in nature – like abortion, vaccine mandates and redistricting….

            The goal of the GOP seems to be to hinder and hobble any timely legal process and outcome until the next election for the Va Senate…

            And hey! If you look at how redistricting is playing out in other GOP-controlled states… it’s seems to be the norm – the basic strategy.

            For it to be materially different in Va, it would take some “mavericks” both Dem and GOP to disrupt the current baseline and on the GOP side – a sure fire way to get primaried…

            You gotta admit – the two political parties control the way the districts are determined – and really – the “one man, one vote” concept be damned. Party over country.

    2. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      Ah, it looks as if I should have waited a day before posting. According to the RTD, the Court unanimously disqualifed one Republican nominee outright due to a conflict of interest and ” has concerns about the ability of the remaining Republican nominees to serve in the role of Special Master.”

      It also disqualified one Democratic nominee because he “has asserted a condition or reservation that suggests to the Court he may not be willing to serve as Special Master in accordance” with the requirements. https://richmond.com/news/state-and-regional/govt-and-politics/virginia-supreme-court-rejects-all-three-gop-nominees-and-one-democratic-nominee-to-help-redraw/article_32faa25f-5d57-51a4-a81c-cf1839711d65.html#tracking-source=home-breaking

      I have never had doubts about the Court’s ability to act fairly in this matter, and their swift reaction to the nominees shows their determination to draw fair maps.

      Your criticism of the Virginia General Assembly is unfair. Certainly, both parties have drawn maps that favored their candidates when they were in power. But that hardly makes the legislature “corrupt”. It is what legislatures do and are now doing all over the country.

      1. LarrytheG Avatar

        It’s the same problem in most other states. I don’t call the legislatures corrupt but the process is because it puts people with obvious conflicts of interest in positions where they are supposed to be fair and objective and in the process probably cause harm to their own interests.

        There is no surprise what happens.

        In states when the legislatures and Gov are of the same party – it’s a done deal. In states where it’s not that way – it goes to the courts… and keeps going on appeals until something changes in elections to change the parties in control.

        Some day, long ago , we may have thought the two parties could rise above partisanship for fundamental core issues of governance. The last few years have laid waste to that idea.

  5. LarrytheG Avatar

    One has to wonder if the GOP did this on purpose – it was so obvious that had SCOVA not acted that people would wonder about their supposed non-partisan objectivity.

    It was almost like a direct challenge to the court.

    And I wonder what the next set of chosen replacements will
    look like and if the too will have obvious conflicts but perhaps not as bad to see if the court could be enticed into going for it.

    Interesting not much feedback from Conservatives or GOP on this in BR.

    Pretty much crickets except from DJ Rippert who already has a low opinion of Virginia and it’s governance – Dem or GOP.

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