Explained: What went wrong with the 11 disputed House Districts, including a Republican delegate’s ‘murky recollection’ in court

By: - August 30, 2018 6:01 am

The floor, emblazoned with the state seal, of the Virginia Capitol in Richmond, CCO via Wikimedia Commons.

Everyone knows the short version at this point: A panel of federal judges ruled that the General Assembly illegally packed black voters into 11 House of Delegates’ districts and has ordered lawmakers to redraw them, a process that’s beginning today.

But the long version is a bit more nuanced and involves two important protections for minority voters. The court ruled that Republicans ran afoul of one while trying to meet the intent of another.

And in the process, the judges said in their ruling that they didn’t believe the testimony offered by Republicans’ star witness, Del. Chris Jones. Though Jones oversaw the 2011 House redistricting effort, the larger, concurrent process of redrawing legislative boundaries was widely supported by both parties as an incumbent protection plan.

The Voting Rights Act required Republicans to protect 12 majority-minority districts in the House of Delegates.

Under the act, the Republican-controlled House could not redistrict in a way that would dilute black voters’ ability to elect their preferred candidates in those 12 districts, all of which are in the Richmond-Petersburg area, Hampton Roads and Southside.

But they also couldn’t redraw lines based on the race of voters alone. That would be racial gerrymandering, and it’s a violation of the Equal Protection Clause, part of the 14th Amendment to the U.S. Constitution.

In its ruling, the court wrote that: “By assigning voters to districts based on race, a state ‘engages in the offensive and demeaning assumption that voters of a particular race, because of their race, think alike, share the same political interests, and will prefer the same candidates at the polls.'”

The court ruled that’s exactly what the House did, setting a strict threshold of 55 percent for black voters in each of the districts.

And by going too far, the maps actually diluted black voters’ voices by drawing them into the same districts from nearby contested districts.

How do you meet the goals of the Voting Rights Act without considering race?

Lawmakers can consider race. They just can’t set what the court called a “mechanical quota” that then takes precedent over traditional redistricting concerns such as uniting communities with shared interests, compactness, political affiliation and protecting voters.

And in fact, the court upheld one of the 12 challenged districts: the 75th in Southside represented by Del. Roslyn Tyler, D-Sussex.

In the case of that district, they ruled that Republican lawmakers had engaged in a district-specific analysis that led them to the conclusion that a 55-percent threshold was necessary to meet the goals of the Voting Rights Act.

Where lawmakers got into trouble is when they then took that 55-percent threshold and applied it to the 11 other protected districts.

The judges cited Democratic Del. Jennifer McClellan’s district in Richmond as an example of why a threshold shouldn’t have been uniformly enforced. With a district comprised of just 46-percent black voters, she was still reliably winning elections, suggesting the lower threshold didn’t threaten black voters’ ability to elect representatives.

But the Republican plan nonetheless carved up her district to remove majority white precincts and include more majority black precincts to meet the 55 percent threshold.

Republicans insisted that race wasn’t the primary factor they used to draw the districts, but the court didn’t believe them.

In his testimony, Jones, the Republican who spearheaded the redistricting effort, and John Morgan, a consultant hired to help, offered a variety of district-by-district explanations in their defense.

In some cases, they testified that drawing lines that split precincts precisely between white and black neighborhoods were either coincidental or aimed at garnering political advantage.

The justices didn’t buy it: “We find that this explanation was not credible.”

In another instance, Jones testified that he spoke to incumbent delegates about what percentage of black voters was needed to avoid “retrogression” under the Voting Rights Act in an effort to show that they had conducted district-specific analysis necessary to set a racial threshold.

Again, the justices didn’t believe him: “Contrary to this contention, however, every member of the black caucus who testified stated that they never told Jones that a 55 percent (threshold) was required in their districts. McClellan further testified that she did not believe that a 55 percent (threshold) was necessary in (her district).”

And finally, the justices just didn’t like that Jones seemed to suddenly have a “murky recollection” of important topics he had previously testified about in detail.

“In light of Jones’ very poor memory at the second trial, as well as his inability to account for material inconsistencies in his testimony, we give little weight to Jones’ testimony regarding the reasons underlying the many changes made to district boundary lines,” they wrote.

Of course, as Republicans like to point out, a majority of Democrats supported the plan when it was put up for a vote in 2011.

Among those who supported the plan: many of the majority-minority delegates.

Asked about that fact on Tuesday, House Minority Leader David Toscano, D-Charlottesville, said the constitutionality of the maps hadn’t been raised at the time.

“We didn’t have an issue,” he said. “This map has been declared unconstitutional. We as responsible legislators have there responsibility of fixing that problem.”

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Ned Oliver
Ned Oliver

Ned, a Lexington native, has been a fulltime journalist since 2008, beginning at The News-Gazette in Lexington, and including stints at the Berkshire Eagle, in Berkshire County, Mass., and the Times-Dispatch and Style Weekly in Richmond. He is a graduate of Bard College at Simon’s Rock, in Great Barrington, Mass. He was named Virginia's outstanding journalist for 2020 by the Virginia Press Association.