Surprise Redistricting Attempt Provides Opportunity for Independent Commission Reform
Democrats' best argument for extraordinary partisan redistricting is a constitutional commitment to a redistricting commission without politicians.
As the Virginia General Assembly begins day two of their surprise meetings to presumably amend the Virginia Constitution’s redistricting process, Democratic lawmakers face a set of legal and political challenges. While the legal challenges will likely be resolved in court, the political challenges present an opportunity for legislators to propose an all-citizen redistricting commission that further removes partisan politicians from redistricting decisions.
Legal Challenges
As Markus Schmidt reported yesterday in the Virginia Mercury, Virginia Republican lawmakers highlighted two key legal issues on the House floor:
Republicans also questioned whether Democrats had already missed the legal window to advance a constitutional amendment this year.
Del. Bobby Orrock, R-Spotsylvania, cited Virginia Code § 30-13, which requires proposed constitutional amendments to be posted publicly at least three months before the next House of Delegates election.
“That deadline has already passed,” Orrock said on the House floor, arguing that any amendment passed this week could not legally appear before voters in November.
Del. Lee Ware, R-Powhatan, warned that Democrats were defying centuries of precedent.
“Here we are, eight days before Election Day, near the conclusion of our 46-day election season, in Richmond,” Ware said. “The purpose of this unprecedented special session during an election is to hitch Virginia, belatedly, to the pell-mell bandwagon, to redistrict, or to speak more honestly, to gerrymander, the commonwealth’s electoral districts.”
Del. Ware is apparently referring to Article XII, Section 1 of the Virginia Constitution which states:
Any amendment or amendments to this Constitution may be proposed in the Senate or House of Delegates, and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, the name of each member and how he voted to be recorded, and referred to the General Assembly at its first regular session held after the next general election of members of the House of Delegates. If at such regular session or any subsequent special session of that General Assembly the proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the General Assembly to submit such proposed amendment or amendments to the voters qualified to vote in elections by the people, in such manner as it shall prescribe and not sooner than ninety days after final passage by the General Assembly. If a majority of those voting vote in favor of any amendment, it shall become part of the Constitution on the date prescribed by the General Assembly in submitting the amendment to the voters.
As Virginia GOP Chairman and State Sen. Mark Peake (R-Lynchburg) told the Virginia Mercury:
Republican Party of Virginia Chair Mark Peake, a state senator from Lynchburg, told The Mercury in an interview Monday that the Democratic proposal was “unconstitutional.”
“There is no intervening election,” Peake said. “Nine-hundred thousand people have already voted. They’re supposed to post it in courthouses for three months before the election. They don’t have a bill, they don’t have a constitutional amendment. It’s not going through. As I said, it’s a ruse.”
Peake predicted “this will 100 percent end up in court.”
Political Challenges
Virginia Democrats face key political challenges as they attempt partisan gerrymandering at the very last minute. First and perhaps most obvious, many incumbent Democratic legislators are on the record (and even on video) opposing partisan gerrymandering in the strongest terms on principle. If they attempt an extreme partisan gerrymander this week, the hypocrisy will be undeniable and, without convincing justification, discrediting on issues of good governance and democracy.
This leads to the next challenge: namely, the fact that Virginia Democrats haven’t made the case for the necessity of partisan gerrymandering beyond noting that other states are taking action and that this represents opposition to the authoritarianism of the Trump Administration. Perhaps we’ll hear legislators make the full case on the floor this week, a case that describes precisely how a few more presumably Democratic congressional representatives from Virginia will lead to tangible popular gains or tangible opposition to authoritarianism.
As it stands, Virginians are supposed to simply trust that accepting a Democratic partisan gerrymander will lead to Democratic control of Congress which will inherently benefit the people. Given the party’s national unpopularity, its lack of a public opposition plan, and its lack of credible national party leaders, this seems like a stretch — and Virginia Democrats should do more to bolster the case.
A Reformed Commission
Since, according to Senate Majority Leader Sen. Scott Surovell (D-Fairfax), there wasn’t agreed upon amendment language yesterday, rumors have circulated that suggest at least these two options: (1) Remove Article II Sections 6 and 6-A of the Virginia Constitution which include the Virginia Redistricting Commission and return total redistricting power to the legislators; (2) Allow short-term partisan gerrymandering by legislators while preserving the existing Redistricting Commission for the future.
According to Elizabeth Beyer’s reporting yesterday in Cardinal News:
Del. Rodney Willett, D-Henrico, said he is carrying the redistricting resolution in the House of Delegates and will introduce it on Wednesday. He added that it will not abolish the bipartisan redistricting commission.
“This resolution is not going to abolish the commission that was created through the earlier constitutional amendment,” he said. “We are still going to have the commission, this is going to give us options.”
The resolution will create an option to redraw the map outside of the decennial when there is extenuating circumstance, Willett said.
To keep the current commission intact, as Del. Willett suggests, ignores our experience with the commission in action. As many opponents of the 2020 amendment that created the current commission said at the time, the existing commission was fated to fail by design, particularly due to the partisan lawmakers who comprised half of the body.
It ultimately did fail, leaving redistricting to the Supreme Court of Virginia which produced maps generally considered fairer than those contemplated by legislative partisans.
If Democratic lawmakers intend to keep a commission, they should reform it to remove partisan lawmakers from the body. This doesn’t require conjuring up brand-new language from scratch. In 2020, then Del. Mark Levine (D-Alexandria) introduced a proposed constitutional amendment that did just that, though it was functionally killed in the House Rules Committee. Here’s the LIS description of that resolution:
Provides for the establishment of the Virginia Citizens Redistricting Commission (the Commission), a 10-member commission responsible for establishing legislative and congressional districts following a decennial census. A selection committee consisting of five retired judges of a circuit court in Virginia, selected by the Speaker of the House of Delegates, the minority leader in the House of Delegates, and the majority and minority leaders in the Senate from a list compiled by the Chief Justice of the Supreme Court of Virginia, is tasked with adopting a process by which registered Virginia voters may apply to serve on the Commission and selecting from the applicants a list of 22 candidates. The amendment requires five of the candidates to be voters who affiliate with the political party receiving the highest number of votes for Governor at the immediately preceding gubernatorial election, five candidates to be voters who affiliate with the political party receiving the next highest number of votes for Governor at the immediately preceding gubernatorial election, and 12 candidates to be voters who do not affiliate with either of those political parties. The Speaker of the House of Delegates, the minority leader in the House of Delegates, and the majority and minority leaders in the Senate then strike names from the list until a final list of 10 Commission members is reached consisting of three members who affiliate with the political party receiving the highest number of votes for Governor at the immediately preceding gubernatorial election, three members who affiliate with the political party receiving the next highest number of votes for Governor at the immediately preceding gubernatorial election, and four members who do not affiliate with either of those political parties. Final approval or adoption of a redistricting plan requires an affirmative vote of seven of the 10 Commission members, including at least one vote from each of the political parties represented. The amendment also contains criteria to which the Commission is required to adhere when drawing the legislative and congressional districts, including a criterion of fairness, and imposes certain requirements on the Commission’s activities to ensure accessibility by the public.
Virginia legislators need not commit to Levine’s 2020 language; other states offer examples of commissions that are more independent than Virginia’s currently. But if Virginia Democrats intend to send new amendment language to the people, language giving politicians the ability to rig the maps in their party’s favor during a Trump-triggered "state of emergency,” they should choose language that demonstrates some remaining commitment to redistricting independent of partisan politicians.