Virginia’s Email Scandal

House District 72 - does this look compact to you?
House District 72 – does this look compact to you?

by Brian Cannon

Today the Supreme Court of Virginia will hear a case about emails politicians don’t want you to see.  You may miss the story in the news because this has nothing to do with presidential politics. Rather it’s about Virginia’s 2011 gerrymander.

Five years ago, Virginia was split with Democrats in control of the Virginia Senate and Republicans in control of the House of Delegates. Governor Bob McDonnell appointed a blue-ribbon commission to propose less partisan maps for Virginia. Unfortunately, legislators did not take the directive seriously. Instead of agreeing to a reasonable approach that benefited Virginia voters, the partisan political leaders of both chambers agreed to feather their own nests. The Republicans in the House passed the Democratic gerrymander of the Senate and the Democrats in the Senate passed the Republican gerrymander of the House. Bi-partisanship at its worst.

Which lawsuit is this again? In 2015, Citizens from across the political spectrum joined to sue the Commonwealth over the lack of compactness in Virginia’s General Assembly districts. A quick look at the districts will give you a clear view of how non-compact these districts actually are. They include six drawn by the Democrats in the Senate and five drawn by the Republicans in the House. By specifically avoiding districts affected by the complication of the Voting Rights Act, the suit is a clear shot at Article II Section 6’s requirement for compactness without all of the complications of the moving target that is today’s VRA.

This lawsuit is funded by the non-partisan OneVirginia2021 with lawyers and a significant discount provided by Wyatt Durrette’s firm DurrettCrump. This is not the same initiative as the Democratic National Redistricting Trust challenge of racial gerrymandering. One of those cases changed Virginia’s congressional boundaries and the other is before the Supreme Court of the United States this fall.

So how do emails work into this?  In the discovery phase of this compactness trial (yeah, we still haven’t gotten to trial yet), the trial judge in Richmond made a ruling about the scope of legislative privilege. The plaintiffs argued legislative privilege should be narrowly construed — about a foot wide.  The defendants argued it is a broad privilege — about a mile wide. Judge Marchant of the Richmond Circuit Court ruled, in effect, that the privilege was a few feet wide. The House of Delegates complied and has been turning over emails and other related documents since.

>In an unprecedented move to avoid turning over their emails, four sitting state senators requested instead to be held in contempt of court. The court obliged, fining each senator $100 a day since early April. The four sitting senators are all Democrats — the same ones behind the gerrymandering in 2011. Originally, the group included one sitting Republican Sen. Richard Stuart, R-Westmoreland, but he complied with the court order, stating to the Washington Post:

I’m a lawyer and I’m never going to refuse a court order. … You just don’t do that. Number two, I’m a public servant and I’m doing the public’s work. Number three, I believe in transparency.

If only Senators Dick Saslaw, D-Springfield, George Barker, D-Alexandria, John Edwards, D-Roanoke, and Dave Marsden, D-Burke, saw it that way and complied with the trial court’s order.

Brian Cannon is executive director of OneVirginia2021.

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6 responses to “Virginia’s Email Scandal”

  1. I get the same thing from the Va. Dept. of Health Professions. The Governors and Lt. Gov’s office too. Bogus, they do anything to hide. I say that it needs to have a rotating citizens group on FOIA to decide if something really hurts the public good, otherwise, all is discoverable.

  2. V N, completely agree with your suggestion. Legislative privilege is self-serving and quite contrary to good, transparent government.

  3. LarrytheG Avatar

    truth be known – a good number of “legislative” folks use non govt private emails and non-govt phones they text on.

    would be interesting if and when a case comes to the courts where “discovery” finds that mother lode of emails and txt messages.

    In this case – the “chumps” were the ones who actually did use their “official” emails that did get FOIAed.

    I suspect the legal issue of whether FOIA actually applies to non govt emails is still not sorted out. Or let’s put it this way- if someone actually FOIAs something – would the private emails and txts be turned over ?

  4. TooManyTaxes Avatar

    Everybody has a right to litigate issues under the laws. While I tend to agree with Sen. Richard Stuart that one should always obey a court order unless it is stayed, I don’t begrudge Senators Saslaw, Barker, Edwards and Marsden, their day in court. The scope and extent of legislative privilege is an issue worthy of decision by the state supreme court.

  5. LarrytheG Avatar

    I think the issue of elected officials using private emails and texts to conduct public business is going to be pretty interesting in the coming months and years and I predict we’re going to find out that it’s a pretty common practice – and we’ll have to decide how we will go forward if elected officials prefer non-govt channels that are not even known nor FOIAble.

    FOIA is going to become a cruel joke…if we can’t figure out how to deal with private email and texts.

  6. Any update on this?

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