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?

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76 responses to “The Trojan Horse Amendment

  1. I am a traditional politician. I think the legislature should control this process. I fully understand the Democrats want to kill this in order to draw a vicious gerrymander, and once the worm turns the Republicans will return the favor. Been there, done that. This idea will produce what I call a compromise gerrymander. It will not be politics-free redistricting, oh no. It might be less of a partisan ugly outcome, but it will still be done by legislators for legislators.

    Ultimately the House delegates will do the deed on their side, and the senators will carve up that body. The implicit understanding is they stay away from each other’s handiwork. That can hold with this set up. I think the idea that the minority party has the same number of “electeds” at the table is rather clever, and can see why the Dems hate that now.

    Go with the cynics. I will. I’d like to see the output. It ought to be far more transparent, if nothing else. Also the real prize is the map for Congressional seats, where mandating some partisan balance will clearly tip toward the center.

    VSC notwithstanding, now the plans all go to federal court for review and this one certainly will. If I’m going to have my vote sliced up and diluted, and a gerrymander imposed, I’d rather make the politicians do it. Them I can punish, the judges I cannot.

    Oh, and I nominate myself for a citizen seat on the committee. They could do worse (and will.)

  2. Good points.

  3. I think the entire effort is cynical myself because having elected political folks on it guarantees skulduggery and my bet is it will be thoroughly under the covers to include the so-called “citizens” who in all likelihood will be party operatives and the like.

    Make no mistake – this will be a high stakes process and both sides will do any/all that they can to get the map they want.

    I don’t want any of them involved in the actual drawing of the maps at all. They need to be kept away from that.

    Give that job to a computer with programmers not from Virginia…perhaps even from India where all they care about is getting the program and map drawing algorithms right. Get several programmers and let several maps be drawn and pick from them.

    And you know, for all the talk of a post-racial society where African Americans have finally got “equality”, having the Voting Rights Act as a “safeguard” – seems unseemly. How would we feel if that Act was not there?

    • What’s that phrase that covers? Oh yeah, Virginia Way. I always wanted to petition the city to change my street name to that.

      • Oh and that other one “community of interest”. Which can really influence generic sized districts.

        I have no idea how that phrase is being defined.

        there are different ways, one way might be based on MSA-type zones.

  4. I have a simple and idealistic objection. Why on earth would any Virginia citizen want to recognize either major party as any part of the redistricting process in any way? This is hiring a fox to draw plans for your hen house.

    I realize that practical politics necessitate some arrangement like this, and it’s a testament to how unredeemable our system really is. Party politics, as Washington warned at the beginning, are now destroying our republic. The two-party system has failed entirely. It’s failed before and the nation has survived, after the introduction of a new national party and a lot of turmoil. I hope that’s how it turns out this time. But the conversations we should (and aren’t going to) have are about new constitutional arrangements that could avoid some of the problems the two-party system can’t overcome. Instead, we’re going to argue about how to distribute more evenly the tasty bucket of chum the current system still has to offer its defenders.

    • This was more or less my thought as I read the article also. Thank you.

      At the end of the day, this is more self perpetrated political wonkiness. Its irrelevant to the daily concerns of most citizens. I’d much rather see term limits and ranked choice voting (in place).

  5. I ‘d rather go through life as a cynic than a hypocrite. There is no plan for redistricting that will be devoid of politics. I have the same concerns as Mr. Hall-Sizemore. I’d prefer fewer members of the legislature and really don’t like the voting rules. However, the process will be transparent and there are good computer models that can test proposals for fairness and come up with alternatives. So, this is better than the status quo and the best should not be the enemy of the better.

  6. The only role for the committee would be to pick what map they like out of several choices, all generated by non-Virginia programmers.

    and once the new districts are decided, we go to rank choice elections.

    And allow as many candidates, I, D, R on the ballot as have the required signatures.

    putting elected on that committee is in my mind a slap in the face of voters.

    let me add when we say “transparent” what that means right now for money in the campaigns…

    it’s really a fascade for rubes.

    You give money to the GOP/DEM pac and it launders itself to the designated recipient -no muss, no fuss, no names of who gave to who.

  7. If I was on the committee I’d try to form districts shaped like past and current animals indigenous to Virginia: wolf, bear, deer, bison, wild turkey, copper-head, water moccasin, duck-billed platypus, etc., with no regard for how many of what type of people resided within them.

    This is one of the myriad reasons I will never be on the committee.

  8. There are multiple boundary lines.

    1. – Virginia Congressional
    2. – Virginia HOD
    3. – Virginia Senate
    4. – local BOS and schools

    The basic magisterial districts are by BOS I believe

    and the other district boundaries often do not align.

    That causes interesting issues at elections – and especially so after
    redistricting and it does get screwed up.

    https://www.washingtonpost.com/graphics/2018/local/virginia-wrong-districts/

  9. Sadly, this could be done with any number of algorithms that could produce simply connected regions of equal voter/population density that respects geological boundaries, or any number of predetermined constraints.

    Alas, science deniers (spit!).

    • Oh, they used science (technology) in the last redistricting. From what I heard, there were dozens of maps. They then got to pick they one they liked most.

      • “They then got to pick they one they liked most.”

        And there’s an algorithm that can do that too! Maybe we could develop a constraint that assures everyone hates the results. Then, we’ll know it’s fair.

        Personally, I don’t have your trepidation. Any other process has to be better than the mess the last time. Then, tweak it.

        • The problem is the folks who want more “hands on” – spend time calibrating and calculating how best to do that.

          That’s the problem with “hands on” even if it seems on the face to be innocuous.

          I just don’t trust the elected party folks – period. If they can find a way to corrupt the process, they will.. It’s what they do.

          Steve can tell you all about it with other legislation.

  10. Last time I drew a district map we used Excel. They would not let me (caucus director) and my assistant get on the state-owned adult computer that the Democrats were using to screw my team. Some of those same House districts we drew came back to haunt the D’s ten years later (heh, heh.) But what we did that year had an impact on the State Senate outcome that very year.

    I agree, the process has been and will be political, little and big P. Perfection is impossible. There should be some standards for compactness, contiguity, and zero population variation (one person, one vote). Gerrymanders usually only hold for a short time.

    • “Gerrymanders usually only hold for a short time.”
      “Some of those same House districts we drew came back to haunt the D’s ten years later (heh, heh.)”

      Uh….

  11. James Wyatt Whitehead V

    I was talking to Wild Man Bill at the Frost Diner this afternoon. He voted today as well. He asked me about the amendment and what it meant. I tried to explain it to him. He still did not get it. And for that reason voted no. I don’t think most Virginians understand what that was all about. The wording on the ballot could be improved upon:

    “Should the Constitution of Virginia be amended to establish a redistricting commission, consisting of eight members of the General Assembly and eight citizens of the Commonwealth, that is responsible for drawing the congressional and state legislative districts that will be subsequently voted on, but not changed by, the General Assembly and enacted without the Governor’s involvement and to give the responsibility of drawing districts to the Supreme Court of Virginia if the redistricting commission fails to draw districts or the General Assembly fails to enact districts by certain deadlines?”

  12. It’s an inherently political process and frankly has always been so. I don’t want to see all political influence eliminated. The proposed amendment should provide some transparency when none currently exists and reduce the gross misalignments resulting in an increase in competitive districts. It is impossible to make all districts competitive but this should help which hopefully will move the needle a little more to the center for both parties. I’m voting yes.

    • I’m not seeing the parts of it that you think are good/better. I’d sure listen to your opinion.

    • A good observation, especially about the gross misalignments. In the past, oddly shaped districts, like the one I am in, were drawn either to protect an incumbent or to “get” an incumbent. You have caused me to think more carefully about my position.

  13. I might be nitpicking here but ” but not changed by, the General Assembly and enacted without the Governor’s involvement ” is not clear at all as the what the nature of the Governors involvement is and what I’m used to with legislative folks is how precise they can be with language like “may” instead of “shall” and so forth.

    If those words were intended to convey to the voter how the Governor would participate… or not… they don’t and I wonder why put them in there to start with?

    So the whole thing seems ill defined to be – which is a red flag for me. It walks and talks with a lot of unknowns about how the process will actually take place.

    I could be wrong, but I think others may share this concern and choose not to support something they don’t fully understand.

    • See, “that will be subsequently voted on” is predictive. In fact, the GA is not compelled, i.e., “shall be subsequently voted on”, to pick one because if they don’t vote, it goes to the Court, and it is conditioned by the fact that the commission even succeeds in creating a plan.

      It is one sentence that reassigns to the Court the total responsibility for maps by covering the failure(s) to act by the commission and/or the GA in a timely fashion, while expressly forbidding the Governor any attempt to lay claim to the process.

      It would have been better presented as a sequential list.

      • It’s hard to understand how anyone can read this and then feel like they actually know what they are voting for.

        I read it and think whoever wrote it is deliberately trying to insult the intelligence of the voters who will vote on it or had an even lower assessments of voters.

        I do not think the wording in this engenders trust in this proposal.

        • Well, the FIRST thing is there is no discussion or description of how the commision will be selected, just 8 political hacks, and 8 political hack wannabes. Or rather, that is what is likely to be seated without a process. So, the commission is a prone-to-fail fig leaf to dump it all on the court.

          As I see this, the whole purpose of the referendum is to do one thing and one thing only — exclude the executive branch by Constitution.

          • agree but supporters say it’s way better than the alternative dog poop. Yes, a choice between bad and worse… cynically proffered to show that citizens get to decide.

            I’d say the way this was written as well as the process design itself is deeply cynical and really disrespectful of voters. I say voters, no citizens. The guys/gals in Richmond need some butt whacking.

  14. Well, Fair Maps Virginia likes it and urges passage.

    but the process looks pretty rigged already to me if what,3 people can override the rest of the Commission.

    why even give a vote to the rest of the commission members if the partisan group controls the outcome?

    This, to me, is sorta like saying one pile of dog poop on the rug is better than two. No…it poop no matter.

    • Of course Fair Maps Virginia likes it. From whrere do you suppose the 8 citizen members will be drawn? You can bet it won’t be a random draw from the pool of registered voters, like a jury.

      You want puke or poop on your sandwich?

      • FairMaps as well as OneVirginia2021 –

        I think both are in the “yeah it’s got warts, but it’s btter than the old system” attitudes, and they’re both in the rah rah mode.

        I really think this could go down even though earlier polls showed support for the CONCEPT:

        Author: 13News Now Staff
        Published: 10:47 AM EST January 2, 2020

        RICHMOND, Va. — A newly-released Mason-Dixon poll shows tremendous support for Virginia lawmakers to take up a redistricting amendment that can help prevent legislators from drawing district lines that could favor their party.

        A crucial second vote of the bipartisan redistricting amendment is set to happen after the General Assembly convenes in a few days. If the proposal passes in the 2020 legislative session, it will go on the ballot for state voters to decide.”

        I think the hacks have got their fingers crossed that the average voter has some significant hopeful rube in them.

        At this point, I’m not convinced that the proposal is actually better than the current bad process to be honest. I think it is sideways a different but equally bad (or worse) process full of swiss cheese unknowns.

  15. “Should the Constitution of Virginia be amended to establish a redistricting commission, consisting of eigth faculty members from the Departments of Mathematics and eight faculty members from the Departments of Computer Science drawn from Virginia’s State Colleges and Universities that is responsible for drawing the congressional and state legislative districts that will be subsequently voted on…”

    There, all better.

  16. Criteria, like Communities of Interest are going to be pretty important and I think it is something that voters can understand also.

    And it’s not like we don’t already have defined statistical regions like Metropolitan and Micropolitan Statistical Areas and actually Planning Districts:

    Such maps would help people better understand in my view.

    one more thing – why do we have all these different districts (like health and VDOT and others) that don’t align with the planning districts? Why not?

  17. Well after seeing CONservatives embrace and justify their hypocrisy and cynicism based on entertainment, I don’t feel bad embracing my own. I personally think Dems should retain the rights afforded them by being selected the representatives of the citizens of Virginia and gerrymander the hell out of this redistricting. Why cede an inch or unilaterally disarm? Altruism is now dead in America. Anyone who votes otherwise is a sucker and a loser. To paraphrase Trump and his fellow CONservatives, Republicans would do the same thing if they had the chance.

  18. James Wyatt Whitehead V

    Gerrymandering will never go away. Long live Elbridge Gerry. He was James Madison’s Vice President too.

  19. Having some legislators on the commission can bring value, although I agree with Dick that fewer would be better. I served on the Fairfax County redistricting advisory committee earlier. It was chaired by former county BoS chair Kate Hanley. No supervisors but it did include each supervisor’s appointee, along with others, representing different groups.

    Hanley provided valuable insight into a number of issues that made our recommendations better. This was based on her years of being an elected official. And she acted in a non-partisan manner.

  20. TMT – what districts were you “re-districting” ?

    • Fairfax County Board of Supervisors.

      • Counties also have to be done also for 2021, right? Down our way, I do not recall this being very contentious last time, but I was not on the committee as you were. Did you use software, maps, etc?

        Pretty much guided by splitting into population by quadrants with some messing around with neighborhoods and some physical boundaries like creeks and highways.

        Schools are different and I believe have two different districts – one for school board and the other to balance attendance zones – the latter being almost always contentious when neighborhoods get switched to other schools.

        • We each had access to data and software. We also met face-to-face multiple times. The software was available before the data so each person could play with the software.

          We were urged by Kate Hanley not to propose plans that moved incumbents out of their district since no such plan would be considered. Other suggestions were to try to keep as many precincts their current district to avoid disruption for voters and not to split precincts because of the problems that creates for voting officials.

          I recall I offered one or two non-disruptive plans that moved a few precincts to form districts very close to the target population and without making major disruptions to neighborhoods. Kate Hanley was very helpful to the Task Force in explaining how certain precincts were part of the same neighborhood communities.

          I was also asked by a supervisor to develop a disruptive plan that split Tysons into three magisterial districts. I complied with that request and identified my plan as disruptive and intended to split Tysons into three districts. The plan was not adopted. Finally, I was asked by members of a town council to move the town from one magisterial district to another. I took the same steps. The plan was not adopted. I saw no reason not to accommodate reasonable requests since they were mere proposals that could be voted on by the Task Force.

          The Task Force voted to narrow its submissions to three plans that, in turn, were submitted to the BoS. One of the plans was adopted and the revised districts used in the fall.

          Like anything else, it took a lot of time but was emotionally rewarding.

          • Thanks… sounds like a fair amount of effort involved. Do you remember the data and how it was distributed – in census blocks? The software allowed you to draw boundaries and see how many people inside the boundary or you told it how many needed to be in an area and it drew boundaries?

          • We are going back quite a ways, but as I recall, everything was contained within the software. We received the software earlier with 2000 data to practice. This was later updated with 2010 census data. The system started with existing districts and information about population within the old districts. As one moved precincts, the population figures changed. It also showed how much districts were off from the target range of “equal population.” I believe there was also some racial and ethnic data. I did not look at that for my conforming districts. Most of the Task Force’s conforming districts were quite similar to the existing ones with appropriate changes to balance population.

            Others proffered non-conforming districts; some by creating new ones. The Task Force, while appreciating the effort, did not adopt any of those since the cost of creating and staffing new supervisors’ offices was a cost few wanted to incur.

          • Thanks, TMT.

  21. Of course, one could allow any and all interesred parties to sumbit redistricting plans. The commission selects upto 4 plans for each map.

    Then offer 100 randomly selected tax payers or registered voters, one or the other, an all expense-paid weekend in lovely downtown Richmond, empaneling them under oath.

    Each selected competing plan is presented with Q&A and let the 100 vote fot the best plan.

    • why not submit 4 maps in a statewide referendum to voters – let them make the final choice?

      I think many citizens would typically not vote for districts that looked obviously gerrymandered and instead would gravitate towards districts that looked compact and had actual recognizable communities of interest.

      Their “interests” would be very different far more legitimate than those from the party and partisans and their citizen supporters on a Commission.

      Make no mistake – everyone that is going to be on that commission is likely to have a direct party affiliation – whether obvious or stealth.

      I think it IS possible to get politics out of it – but that means we have to be willing to let go of our own partisan leanings.

    • Throwing darts at a dartboard might be simpler. Especially if covered with animal-shaped scoring zones.

  22. Free Lance Star supports it in editorial and says this: ” But Democratic concerns reek with hypocrisy. The same Dems who moaned for years about the unfairness of the old maps suddenly got control of both houses of the General Assembly last year. Suddenly, with the chance to redraw the lines themselves, the amendment they had pushed for a decade was a terrible idea.”

    It’s fair to point out that this is likely not a first-cut law that can be modified and evolve as some seem to think “a step in the right direction, warts can be fixed”.

    This change will be fairly permanent and changeable only by subsequent referenda as far as I can see. Someone correct me if I don’t understand.

    What this means is that if we approve, we are essentially institutionalizing the de-facto ownership of our political process by the two parties which I think has actually harmed us because the elected are more loyal to their litmus-test parties than voters at times.

    This is not something we “tweak” as we go along. It’s more or less permanent.

  23. Dick, I can’t recall another column that has generated as many comments as this one. I kind of thought support for the Independent Redistricting Commission would be a no-brainer.

    I hope you will reconsider your position and support Amendment 1. It is about as good as we’re going to get.

    I too am unhappy about the political party representation on the commission. I recall speaking with Brian Cannon about the legislation when the pols added political appointees (notice that they restricted such appointments to themselves – Republicans and Democrats – no other political parties). He said it was simply the best we were going to get. It wouldn’t pass without some provisions like that. I suppose that, in the end, that’s what democracy is all about – the art of the possible. We will be in a very bad place if we let the desire for perfection displace getting anything good.

    Over the last several weeks, I’ve noticed columnist singling out Republicans for those dastardly House of Delegates districts. So very true. But they all seem to forget that the Dems controlled the Senate in 2010 and were responsible for their own outrageous gerrymandering. For a real Rorschach test visit the Senate’s 8th. 20th, or 21st districts. In the latter case, Dems mated up Roanoke city (not Salem or other parts of the Roanoke Valley) with Blacksburg, but not Christiansburg…clearly to preserve a Democratic seat.

    So, in the end, they are all equal opportunity offenders. Most importantly, if Amendment 1 does not pass, you can surely count on gerrymanders just as offensive as in 2000 0r 2010 under the Democratic controlled House and Senate. Amendment 1 is about the only chance we have to temper power grabs, that everpresent urge of politicians.

    • I think if this was going to be a law that could subsequently be improved incrementally as time goes by – I could swallow a toad on that premise.

      But this is going to become a harder-to-change part of the Constitution that essentially institutionalizes the two parties controlling the government and doing so more according to the party’s own position than voters. Voting against the party will get you prmaried.

      That’s the part that I think has damaged our system of governance.

      The choice is to actually have more gerrymandering until we do get a better proposal. I think the current “cure” is not really better – just a distraction so business will continue as before.

      I just hate the idea of the two-parties having a stranglehold on our system of governance. I’d take a viable 3rd party in the mix – any day over the two current parties governing almost by negotiated fiat.

      I could actually change my mind – but the more I read about it – the less wonderful it sounds. I have zero confidence that the “citizens” will be anything but party loyalists.

  24. All the good guys are recommending passage of this. I am truly disappointed that the “solution” to gerrymanding is to turn over the process to both sides that corrupted the map drawing to start with.

    Now they get to “negotiate” and each side has the right to nix it.

    This amendment basically codifies two-party rule of our governance.

    Which tells me that there is probably zero chance that they will agree to ranked choice voting either.

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