Debate over whether Democrats should gain from redistricting heads to court

By: - October 9, 2018 6:05 am
Del. Chris Jones, R-Suffolk, defended a remedial redistricting proposal that a House panel advanced Thursday on a party-line vote. (Ned Oliver/Virginia Mercury - Sept. 27, 2018)

Del. Chris Jones, R-Suffolk, defended a remedial redistricting proposal that a House panel advanced last year on a party-line vote. (Ned Oliver/Virginia Mercury – Sept. 27, 2018)

Should the process of unpacking black voters from racially gerrymandered districts leave Democrats with a political edge?

Democrats have steadfastly argued yes: To the extent that packing black voters into certain districts benefited the Republican majority, undoing that would necessarily benefit the Democratic minority.

Republicans, meanwhile, have treated the federal court order as a technical problem that can be addressed by simply drawing new lines without looking at racial data but otherwise maintaining the existing partisan makeup of closely-contested districts.

With a planned floor debate cancelled and redistricting back in the hands of the courts, we might get a clearer indication of which approach judges had in mind when they ordered the General Assembly to redraw the maps earlier this year.

That’s because now that the General Assembly has given up, the courts need to appoint an independent “special master” to do it. And legal wrangling by Democrats and Republicans over just who that special master should be has already morphed into a proxy for the same basic debate.

In a motion, lawyers representing Democrats’ interest put forward two potential names: Bernard Grofman and Nathaniel Persily. Grofman is a University of California, Irvine, political science professor who was appointed to redraw Virginia’s 3rd Congressional District in 2015 after Republicans lost a similar racial gerrymandering lawsuit.

Persily, a Stanford law professor, drew a remedial map in a similar Pennsylvania case.

In response, Republicans filed a motion opposing both men on grounds that previous redistricting efforts they’d overseen benefited Democrats. In Grofman’s case, they argued his redistricting plan led to former Republican U.S. Rep. Randy Forbes’ inability to win reelection.

“This deprived Virginia of a high-ranking member of Congress,” Republicans wrote.

In Persily’s case, the Republicans cite a New York Times story that described his work redrawing Pennsylvania congressional districts resulting in a map that “is better for Democrats … than the maps that Democrats themselves propose.”

In response, the Democratic lawyers who initiated the lawsuit noted that, in both cases, the maps drawn by the two experts were vetted and accepted by the federal judges overseeing the cases.

“Intervenors object to the appointment of these two distinguished and experienced academics because, apparently, intervenors are concerned that these candidates will not make it a special point of emphasis to protect Republican incumbents,” they write. “That is, intervenors seek a remedial redistricting plan that will lock in the political consequences of a plan that unconstitutionally packed African-American voters into a relative handful of districts.”

Sound familiar?

Meanwhile, Republicans have proposed two map drawers of their own who have likewise drawn objections from Democrats: Douglas Johnson and Thomas Burnell.

Johnson is a fellow at Claremont McKenna College and consultant. Burnell is a professor at the University of Texas in Dallas. Both have served as expert witnesses in redistricting cases.

Democrats have objected, arguing Burnell should be disqualified because submitted a brief in the case supporting Republicans. They also note he was Trump’s nominee for deputy director of the Census Bureau, but withdrew amid criticism for his work arguing on behalf of Republicans defending racial gerrymandering and a book he authored which argues competitive elections are “bad for America.”

In Johnson’s case, they noted courts have rejected plans he drew in the past, in one case finding it troubling that he had created districts “designed to protect the current incumbents.”

Republicans responded that Johnson was simply following standard directions and that, despite a lack of experience drawing maps on behalf of a court, he had participated in the drawing of hundreds of maps outside the judicial process.

In Burnell’s case, they argued that his brief in the case was filed as a “friend of the court” and should not disqualify him. As for his arguments about competitive elections, they argue his “private research theory” is irrelevant.

And, in either case, they argue the argument against competitive districts kind of makes sense:

“Dr. Brunell’s views are not the pariah positions plaintiffs and defendants make them out to be. They are fairly intuitive: drawing near-even splits of Republican and Democratic voters into the same districts means nearly half the voters in the district will have opposed the representative—thereby leaving nearly half the voters unhappy (or less inclined to be happy) with their representation and leaving representatives with mixed and often diametrically contradictory signals from constituents. Drawing voters together on the basis of party renders larger number of voters, both Democratic and Republican, happy with their representative.”

It’s not yet clear when the court will issue a decision.

Correction: An earlier version of this story misstated the year Bernard Grofman was appointed to redraw Virginia’s 3rd Congressional District.

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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. Contact him at [email protected]