Proposed Constitutional Amendment #1
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?
When Republicans were in charge of drawing political boundaries for the General Assembly and Congress, Democrats supported an amendment to the Virginia Constitution creating a new mapmaking commission. The idea was to take the power of political gerrymandering out of the hands of the majority and hand it over to a group that wouldn’t be quite so focused on screwing the opposition. But then Democrats seized control of the General Assembly, and most House Democrats flip flopped on the issue.
“It takes the process out of the hands of the dominant party,” said Del. Ken Plum (D-36), who was one of only nine House Democrats to vote in favor of the amendment this year. "We might say ‘Gee whiz, we’ve got a nice progressive party now. Let’s let them do the redistricting.’ That’s called gerrymandering.”
The idea that politicians might act one way when the opposition is in control and then change their mind after assuming power has a particular resonance this week, as Republicans in the United States Senate are trying to explain their flip flop on when Supreme Court vacancies should be approved. Democrats in the House of Delegates are offering a number of explanations for their reversal, including an argument that the last-minute compromise worked out at the end of the 2019 General Assembly session wasn’t thoroughly vetted. Explaining the reasoning behind her change of heart, House Majority Leader Charniele Herring said that she didn’t really have enough time to consider the version that emerged out of a secret closed-door conference committee, which was not open to the public or the press.
“We had a senator walking into our caucus to give us a briefing on the deal they struck, and I remember saying, ‘Gosh darn it, no. It’s not nonpartisan redistricting.’"said Herring, who represents Alexandria. “Unfortunately I went with the wave.”
THE AMENDMENT NOW before voters sets up a 16-member commission to draw boundaries for the House of Delegates, the state Senate and Congress. Eight of its members would be members of the General Assembly, four from the House and four from the Senate. The Democratic leadership in the House would get to pick two members, and the Republican minority leadership would also get to pick two members. The same format would apply in the Senate, where the majority party and the minority party would each get an opportunity to name two senators to the commission. The other eight members of the commission would be citizens selected by a panel of retired judges.
“Citizen initiatives have kind of gone around their legislature, whether it's in Utah or Missouri or Colorado or Arizona or others,” said Brian Cannon, executive director of a group known as One Virginia 2021 that has been pushing for redistricting reform for years. “This would be the most comprehensive reform ever passed through a state legislature.”
One group of Democrats that have not changed their position on the issue is the Legislative Black Caucus. Most Black members of the House of Delegates opposed the amendment last year, and they oppose it again this year. They point out that the closed-door conference committee that crafted the last minute compromise in secret was an all-white group of lawmakers. Furthermore, they say, the process they created behind closed doors does not include any explicit demand for racial diversity.
“We have great concerns about having African-American representation in the room for redistricting,” said Del. Lamont Bagby (D-74), chairman of the Legislative Black Caucus, when the amendment was first proposed last year. “This doesn’t guarantee that.”
THE LONG AND STRANGE history of political mapmaking in Virginia dates back to the earliest days of the republic, when Virginia Gov. Patrick Henry tried to draw the commonwealth’s congressional districts in a way specifically designed to deny his enemy James Madison a seat in the U.S. House of Representatives in 1789. The plan failed, and Madison was elected anyway. A few years later the term “gerrymander” was coined when Massachusetts Gov. Eldridge Gerry proposed a plan designed to harm Federalists that included a district that reminded critics of a salamander, prompting them to invent a phrase that has long since eclipsed the governor’s name recognition in the popular imagination.
“This would be the most comprehensive reform ever passed through a state legislature.”
—Brian Cannon, executive director of One Virginia 2021
“Ironically, through a fine twist of history, Eldridge Gerry served as vice president under Madison,” observed University of Virginia professor Kenneth Stroupe in a 2009 history of gerrymandering in Virginia. “Thanks to ever-changing shifts in demographics and the often willful nature of voters, the practice of gerrymandering has not always proven successful in achieving the politicians’ desired electoral outcomes.”
Courts ruled Virginia’s congressional districts were unconstitutional in 1965 for violating the principle of “one man, one vote” and then again in 1971, when the maps were drawn to make sure incumbents in Danville and Appomattox County could keep their seats even though they were practically neighbors. The map for the House of Delegates districts in the election of 1981 was so bad a judge ordered a new election in 1982, promptly followed by yet another election in 1983. One of the more notorious examples of partisan gerrymandering in Virginia happened after the 2010 Census, when Republicans drew maps that a federal court later determined packed Black voters into a handful of districts to dilute their influence throughout the state.
“Be careful in how you describe what you’re seeking,” wrote former Alexandria Republican Chairman Chis Marston in a 2010 email that later became evidence in a United States Supreme Court case. “We need to keep out any hint of unfairness (except the fundamental unfairness of the Voting Rights Act) or partisanship.”
AS THE 2020 CENSUS approached last year, lawmakers saw a rare opportunity for compromise. Republicans were justifiably worried they were about to lose control, and they were willing to set up a process to take some of the partisanship out of the process. Democrats were eager to finally score some kind of reform of a process they had long criticized while they were out of power. Sen. George Barker (D-39) was leading the effort on the Senate side, and Del. Mark Cole (R-88) was negotiating on behalf of the House Republican leadership. When the two sides became deadlocked, the process moved to a conference committee of three senators and four House members.
“At the time, it seemed like the best opportunity we had at getting rid of gerrymandering,” said Del. Paul Krizek (D-44), who was a member of the closed-door conference committee. “I can understand people who will support this because they think it’s better than nothing. But I believe this is actually a worse system because it enshrines gerrymandering into the process."
Although all 15 House members of the Legislative Black Caucus are united in their opposition to the amendment this year, the two Black senators are in favor of the amendment. And although most House Democrats opposed the amendment, nine House Democrats joined all 45 House Republicans to approve the amendment. So voters are left with a mixed picture: Republicans are united in their support of the amendment, but Democrats are divided. For Republicans, it’s an opportunity to point out that many of the Democrats who are now in opposition to the amendment are going back on their campaign promises last year to support the new commission.
“It’s disgraceful. These folks ran on the issue,” said Sen. Mark Obenshain (R-26). "They told people across the commonwealth of Virginia that they supported the Constitutional amendment. They got elected on the basis of supporting it, and if they turn their backs on their constituents there’s going to be a price to pay.”
DEMOCRATS ARE WORRIED about a provision of the amendment that lays out a process for what happens if the commission is deadlocked. If the two House Republicans on the commission refuse to accept the maps, for example, the conservative justices on the Supreme Court of Virginia get to draw the maps. Because Republicans controlled Virginia for so many years, Democrats fear they would draw maps designed to help Republicans. For many Democrats who supported the amendment last year and have now changed their position, this is one of the key arguments against the new commission.
“I can’t trust judges to be fair on the basis of the facts and the law anymore. Those days, if they ever existed, they’re certainly gone now.”
—Del. Mark Levine (D-45)
“I can’t trust judges to be fair on the basis of the facts and the law anymore,” says Del. Mark Levine (D-45), who voted for the amendment before he voted against it. “Those days, if they ever existed, they’re certainly gone now.”
During a recent forum about the amendment hosted by the Unitarian Universalist Church in Reston, Plum and Levine debated the amendment and considered various arguments for and against. When Levine outlined his concerns that the Supreme Court of Virginia would gerrymander in favor of Republicans, Plum dismissed the idea.
“The Virginia Supreme Court is a conservative court, and what that means is that they’re going to abide closely by the letter of the Constitution,” said Plum, who has been working to reform the redistricting system for decades. “They’re going to know what the Constitution provides, and you can shake your head all you want. But that’s the way it would work.”