The Trojan Horse Amendment

By Dick Hall-Sizemore

I need some help sorting out a dilemma I find myself in.

I am strongly in favor of the concept of authorizing an independent commission to draw legislative district lines. On the other hand, I really do not like the proposed amendment to the Virginia Constitution that would create such a commission.

During the debate last session, two objections were the most prominent. The members of the Legislative Black Caucus objected strenuously that the proposed amendment did not guarantee that minorities would be represented on the commission. I am not swayed by that argument. There is ample opportunity to have minorities appointed as citizen members. Furthermore, the voting rights of minorities are protected by the Voting Rights Act. If any redistricting plan produced by the commission unfairly violated the voting rights of minorities, it would be struck down by the federal courts. The Republicans found this out a couple of years ago.

The second prominent objection was that, in case the commission was not able to agree on a plan, it would be up to the state Supreme Court to develop one. Many expressed the fear that the current Supreme Court, most of them elected by Republicans, would decide on a plan that would favor Republicans. I do not buy that argument, either. I have more faith in the Virginia Supreme Court.

One concern I do have is that this would not be a commission devoid of legislative influence. The constitutional amendment provides for a commission of 16 members, half of whom would be legislators, divided evenly by house and party. Although I would prefer fewer legislative members, I can live with this provision. Having some legislators on the commission could be beneficial; there are probably some practical nuances and mistakes to avoid of which citizens would be unaware.

I now come to my core objection, to what I regard as the Trojan Horse embedded in the amendment. On the commission will be four members of the House of Delegates, two from each party, and four Senators, two from each party. Any plan to redistrict either house would have to receive the approval of at least six of the eight legislators on the commission, including three of the four members of house in question. Therefore, either party could veto a plan to redistrict either house, for whatever reason. For example, if a proposed plan placed one of the legislative members of the commission in a district she did not like, whether for demographic reasons or because she was placed in the same district as another member of her party, she could veto the plan if she could enlist the support of her fellow party member on the commission. And, of course, the members of either party could veto a plan that did not, in their view, treat their party fairly.

Of course, by vetoing a plan, the rebelling members would risk having the Supreme Court step in with a plan that was just as bad or worse, from the point of view, than the one they had objected to. In reality, however, the members of the commission would probably be loath to admit defeat and turn their responsibilities over to the Supreme Court. Therefore, they would likely work to come up with a compromise plan that would satisfy the objectors.

After rejecting proposals to turn over redistricting to an independent body for many years, the Republicans were faced with a dilemma in the 2019 Session. Their margin in the House had unexpectedly been cut to two in the 2017 election and their prospects were bleak for the 2019 fall election that would decide which party would control redistricting. So, they found religion and converted to having a non-legislative body draw the districts. But, they made sure that legislators would have a dominant voice in the drawing of plans and, furthermore, even if they were in the minority in the legislature, they would have equal representation on the commission. Moreover, they could veto any plan to redistrict either house.

The Republicans had the votes in the 2019 Session to get this cynical, but ingenious, proposal through. The Democrats, not certain they were going to win majorities in the fall and surely not wanting the Republicans to have the power to draw districts for a third decade in a row if they fell short, largely went along.

The Democrats do not come out of this smelling very good, either. The proposed amendment needed to be adopted a second time before being put to the people for ratification. After winning the majority in both houses in the 2019 election, the Democrats in the House turned against the proposed amendment with a vengeance, primarily for the reasons cited above. Only with the help of nine Democrats did the proposed amendment get finally adopted. Those working against its adoption and voting against it in 2020 would have credibility if they had voted against the proposed amendment in 2019. But, with a few exceptions, they did not do that; they voted for the measure.

Those switching votes in 2020 from their 2019 position included the current Speaker, Eileen Filler-Corn and the majority leader, Charniele Herring, and Mark Levine, a co-author of an op-ed in last Sunday’s Richmond Times-Dispatch urging Virginians to “Vote No” It is not necessarily bad for a legislator to change her position. New information becomes available, circumstances change, etc. But, this was good, old-fashioned opportunism: opposing a reform that you had championed for years because you now stand to benefit from the existing situation. Some would call it hypocrisy.

So, when I cast my ballot later this fall, whom should I side with:  the cynics or the hypocrites?