Virginia Democrats had many reasons to celebrate on Nov. 5 when the party gained control of both General Assembly chambers, giving them the legislature and governorship for the first time since 1993.
Erasing the narrow majorities that Republicans held in the House of Delegates and State Senate in 2019 means Democrats will be able to tackle issues like gun reform, minimum wage, and gender equality that have stagnated in recent years when state legislators convene in Richmond in January.
It also ensures Democrats will be in power for the critical year when Virginia’s congressional and legislative district maps will be redrawn for the next decade.
Exactly how that process will unfold in 2021 remains to be determined, as legislators across partisan lines debate how to approach redistricting in a way that is fair and reflective of voters’ actual choices.
“A fundamental, core part of a representative democracy is that the people elected to serve actually represent those they’re serving,” OneVirginia2021 executive director Brian Cannon said. “What you have under the current system of gerrymandering…is you have a system where politicians get to outright pick their voters in a smoky back room with no transparency or citizens involved or consulted at all.”
Formed in 2014 by a group of policymakers and citizens, including former Republican Lt. Gov. Bill Bolling and Transportation Secretary Shannon Valentine, OneVirginia2021 describes itself as a nonpartisan organization dedicated to eliminating partisan gerrymandering and advocating for fair redistricting in Virginia.
The nonprofit has come out in favor of adopting an amendment to the Constitution of Virginia that would take redistricting authority away from the General Assembly and give it instead to a 16-member commission split evenly between legislators and citizens.
Proponents of the redistricting amendment, represented by Cannon, and opponents, represented by Del. Mark Levine (D-45th), gathered at Marymount University’s Phelan Hall in Arlington on Dec. 11 for a debate on the proposal.
The possible Virginia Redistricting Commission was introduced as a resolution by Sen. George Barker (D-39th) on Jan. 9 and passed its first reads in the House and Senate on Feb. 23.
In Virginia, constitutional amendments must be approved by the General Assembly two years in a row without alteration and then put to a public vote 90 days after its final passage to be ratified.
Under the proposed amendment, the redistricting commission would consist of eight legislators, four from each state chamber, and eight citizens appointed every 10 years starting with 2020.
While the legislative members would come from the majority and minority party leadership in each chamber, the citizen members would be selected by a committee of five retired circuit court judges from lists of candidates submitted by the General Assembly.
The commission would then develop district maps that need approval from at least six legislative members and six citizen members to be submitted for consideration by the General Assembly, which has to vote on the maps within 15 days of receiving them.
The General Assembly would not be allowed to amend the redistricting commission’s proposed maps. If the legislature fails to adopt a redistricting bill by the deadline, the commission would submit a new plan within 14 days, and a vote on the new plan would take place within seven days of its submission.
If the General Assembly fails to adopt the redistricting plan again, the districts would be drawn by the Virginia Supreme Court.
In an opinion piece for The Washington Post in March, Barker and Sen. Richard Saslaw (D-35th), who served as the Senate joint resolution’s chief co-patron with Sen. Emmett Hanger Jr. (R-24th), explained that their proposed constitutional amendment would eliminate the partisan gerrymandering that has marred previous district maps, often along racial lines, and prevent similar manipulation in the future.
“Our plan was carefully crafted to address the egregious mistakes of our past,” Barker and Saslaw said.
A panel of U.S. District Court judges ruled in June 2018 that Virginia’s district maps adopted by the General Assembly in 2011 were unconstitutional, because 11 districts had been drawn based on race, concentrating black voters to specific districts and diluting their influence.
The court gave the General Assembly about four months to establish a new redistricting plan.
While Attorney Gen. Mark Herring declined to appeal the decision, the House of Delegates filed its own appeal that was eventually dismissed in June by the U.S. Supreme Court, which ruled 5-to-4 that the legislative chamber did not have the authority to pursue the appeal.
This past November’s general election was the first conducted in Virginia under maps drawn by a federal court-hired expert after the House chose not to develop a new plan itself.
The court’s plan affected an estimated 425,000 voters and changed the partisan leanings of 25 districts, all of them in the southeastern part of the state, according to the Virginia Public Access Project.
Cannon says OneVirginia2021 would ideally like to see legislators taken entirely out of the redistricting process, but Barker’s constitutional amendment provides a solid foundation for a more expansive reform package.
To ensure the proposed commission functions as intended, OneVirginia2021 is advocating for supplemental legislation that would establish additional criteria, including conflict-of-interest vetting, an expectation that the commission’s members represent the Commonwealth’s diversity, prohibitions on gerrymandering, rules for public engagement, and procedures for dealing with a gridlocked commission.
“It’s a huge step forward for redistricting reform in Virginia,” Cannon said. “For the first time, citizens would be at the table with a veto over bad maps. It has the first-ever protection for racial and ethnic minority communities in the Virginia Constitution…and it has transparency provisions that would ensure that this is never done in a smoky backroom again.”
While it passed the House 85-13 and the Senate 39-1 during the 2019 General Assembly session, the redistricting commission constitutional amendment has drawn some skepticism, particularly from the Virginia Legislative Black Caucus that largely voted against the resolution.
The lack of language in the amendment explicitly banning gerrymandering and guaranteeing equal representation for African Americans shows that the community was not fully considered despite being most historically marginalized by unfair redistricting, Virginia Legislative Black Caucus Chairman Del. Lamont Bagby (D-74th) told the Virginia Mercury in an interview on Oct. 14.
The amendment says “every electoral district shall be drawn in accordance with the requirements of federal and state laws that address racial and ethnic fairness,” including the equal protection clause of the Fourteenth Amendment to the U.S. Constitution and the Voting Rights Act of 1965.
However, it then states that districts will let racial and ethnic communities elect candidates of their choice “where practicable,” a clause that rankled black state lawmakers when the General Assembly approved the amendment in February, according to the Richmond Times-Dispatch.
The supplemental bills that the amendment’s supporters hope to pass to address concerns around equity and gerrymandering could be more easily overturned by future legislators than if such requirements were incorporated into the constitution itself, argues Herndon-Reston Indivisible organizer Joanne Collins.
The local grassroots organization of progressive activists opposes the redistricting amendment as it is currently written, calling instead for one that establishes a nonpartisan commission entirely independent of the state legislature.
Because a new amendment would need two years to get through the General Assembly before a public vote, the 2021 district maps could be drawn through a process established by bills passed during the upcoming session while lawmakers work on a new proposal, Collins says.
Del. Mark Levine, who voted for the amendment during the 2019 session but is now against it, is working on a bill that would allow legislative district maps to be designed by a computer using a model developed by University of Chicago law professor Nicholas Stephanopoulos and Public Policy Institute of California political scientist Eric McGhee.
Their “efficiency gap” metric identifies gerrymandered districts based on the number of wasted votes, meaning the ballots that are cast but do not contribute to an election’s outcome because they either surpass the votes needed by the winning party or went to the losing party.
Levine has not yet filed his bill in Virginia’s Legislative Information System, but he plans to do so in time for the General Assembly’s 2020 session.
“Let’s just take human beings out of it. Let’s take the legislators out of it. Let’s take the courts out of it. Let’s do lines based on a computer that are fair,” Levine said.
Herndon-Reston Indivisible co-founder Heidi Zollo says redistricting is a critical issue, and she wants to see it done right, not simply out of expediency to appease political pressure for action.
“Virginians, especially grassroots, have really worked hard to get the representation that they want,” Zollo said. “We’re expecting our representatives to take a really hard look at the language that’s in the amendment and to think long and hard about their vote, because their vote is going to matter to the future direction of Virginia.”