The Capitol at dusk. (Ned Oliver/Virginia Mercury)

After years of lawsuits and court-appointed special masters having the final say on drawing some legislative districts, House Republicans are coming around to what advocates have said for years: Virginia needs a new way of drawing voting districts.

The Senate has been on board with redistricting reform for several years and passed bills out of the chamber. Those efforts have always been met with resistance from House Republican leaders, who said the power of drawing voting lines belongs to the legislature, not an independent commission.

But now, Del. Mark Cole, R-Spotsylvania, is carrying a bill that would change the redistricting process. It’s the only one that appears to be moving toward the House floor before crossover, when bills must go to the other chamber or are dead for the session.

Here are details on how and why the process could change:

What would Cole’s bill do?

Cole’s bill, which would require an amendment to the Virginia Constitution, pulls ideas from other redistricting reform proposals to create the Virginia Independent Redistricting Commission, a 12-member body responsible for drawing districts for the U.S. House of Representatives and the Virginia General Assembly.

Four of those members would would be picked by the speaker of the House of Delegates, four by the Senate Committee on Rules and four by the governor. The appointments would be evenly split between Republicans and Democrats.

That commission would create a voting map based on several criteria that have shown up in other bills, like making sure districts aren’t oddly drawn or cross boundaries like town limits. Once drawn and submitted the General Assembly will vote on it. The House of Delegates will only vote on the House map and the Senate will only vote on Senate districts.

For districts for federal positions, eight of the 12 commissioners have to approve it. In the state House and Senate, three of the four members appointed by each chamber have to approve it.

If the General Assembly rejects two versions of the map, the state Supreme Court, made up of judges appointed by the General Assembly, will create a map.

The governor isn’t involved in the process after the selection of the commission.

Cole’s bill also has a provision to create local independent commissions to draw districts, if a locality elects officials in a ward system. It follows a similar setup to the state version, but doesn’t include oversight from the state Supreme Court.

How does it differ from what redistricting reform advocates have supported?

Most importantly to Republicans who were skeptical of independent redistricting, Cole’s bill keeps the legislature in the map-drawing process, said Speaker of the House Kirk Cox, R-Colonial Heights.

“It has some legislative elements I like,” he said. “It’s not ideal … but I think it has some elements that keeps it a state prerogative.”

OneVirginia2021, a redistricting reform advocacy group, has put forth ideas for an independent commission for several years. This year, the group helped draft a constitutional amendment that would create a 10-member commission created from a pool of 22 nominations from retired judges and whittled down by lawmakers.

That bill wasn’t passed out of the Senate.

Instead, a bill from Sens. George Barker, D-Alexandria, Emmett Hanger, R-Augusta, and Dick Saslaw, D-Fairfax, advanced. That bill creates a 16-member commission with eight citizen members and eight lawmakers. Citizen members are picked by retired judges.

Each party is represented by four members each and eight members are independents picked through a similar striking process as proposed in OneVirginia2021’s bill. The General Assembly still gets to vote on a map once it’s done but can’t make any changes. Neither can the governor.

All the bills on the table show real movement toward reform, said Brian Cannon, executive director of OneVirginia2021. He said Cole’s bill is a good start.

“There’s a lot of good stuff in there,” he said. “There’s room to maneuver and make things different but the criteria they’re talking about is, in large part, very good criteria.”

Cannon said removing the governor from the process is a positive step, but he wants to see some additions about transparency — which could mean requiring public hearings on proposed maps — and more clear rules to make sure one political party isn’t favored in drawing maps.

We feel very strongly that this amendment should include specific provisions for full transparency and clear rules prohibiting political gerrymandering,” Cannon wrote in a prepared statement. “Seats in the General Assembly and in Congress don’t belong to the political parties — they belong to the people.”

Why are Republicans behind it:

Virginia has been in court for eight years since the 2011 redistricting. A federal court imposed a new congressional map in 2016 that helped Democrats pick up an extra seat, and another federal panel is has redrawn 11 House of Delegates districts.

Both cases stemmed from lawsuits filed over packing too many black voters into districts, diluting their voting strength. Cox claimed those rulings have been unfair to Republicans. 

Cox’s district is among those planned for major changes that it make it more friendly to Democrats.

“I’ve been very clear I’ve not been pleased with how the federal courts have come down, I think clearly our leadership was targeted,” he said. “With what’s transpired in the last 10 years, trying to accommodate that view some and simplifying the process, I can get behind this bill.”

Republicans are clinging to small majority in both chambers after the 2017 election.

It doesn’t appear that Cole’s bill would favor Republicans, said Ben Williams, a legal analyst with the Princeton University Gerrymandering Project, which studies redistricting rules and practices around the country.

However, one section in the proposal calls to “preserve the political parity between the two political parties receiving the highest and next highest number of votes in the immediately preceding gubernatorial election.”

That isn’t a requirement that districts favor any particular party, said Parker Slaybaugh, spokesperson for Cox.

“It’s just a criteria, like all the others, that has to be weighed with all the others,” Slaybaugh said. “It’s not a specific requirement or mandate, just something the commission has to keep in mind.”

Williams thinks that provision could easily be misunderstood. He said it seemed it would give Democrats a constitutionally required partisan gerrymander in districts that favored Gov. Ralph Northam in the 2017 election.

“This is not a purely Republican power-grab,” Williams said. “There are provisions of this law, which if enacted, could hurt Republicans too. The way this is designed I could see this being as favorable to Democrats as it is to Republicans.”

That political parity provision is problematic, according to Progress Virginia, a liberal advocacy group, which said it defeats the purpose of redistricting reform, regardless of what political party may benefit from the rule.

“The GOP’s proposal simply replaces one bad system with another,” said Progress Virginia Executive Director Anna Scholl. “Voters should choose their elected officials, not the other way around. But under this amendment, voters would lose the power of their vote because districts would be required to be drawn to create a certain number of blue districts and a certain number of red ones. Our democracy is strongest when we all have a say, not when decisions are made for us.”

Will it keep Virginia out of court?

Trying to create a lawsuit-proof redistricting process is unrealistic, Williams said. Almost every state has been challenged on voting maps in the past decade.

The legal proceedings related to the 2011 voting map have cost millions of dollars and the price could increase as Republicans pursue a Supreme Court appeal.

Cox knows an independent commission as proposed in Cole’s bill doesn’t mean the state will never be in court again over redistricting.

“I don’t think there’s any way to solve that problem,” he said.

Williams said some of the criteria laid out in Cole’s bill for maps may be too unclear or cause new problems that land maps in the courts again.

“If my goal was to get maps out of court, this is not how I would do it,” he said. “The easiest way to get out of court is to just have neutral principles and follow them.”

What’s the next step?

Most redistricting advocates hope there will be some changes to Cole’s bill to establish more clear guidelines for selecting the people drawing the map and the rules for the districts.

Cox said the bill isn’t ideal, but has aspects that he hopes are worked into whatever redistricting process the legislature lands on, like retaining the General Assembly’s role and keeping the provision for competitiveness.

But Cole’s bill doesn’t have Gov. Ralph Northam’s stamp of approval yet.

“The governor is deeply concerned that this measure would continue to give politicians influence over our electoral maps,” spokeswoman Alena Yarmosky wrote in an email. “He has said repeatedly that redistricting must be nonpartisan — voters must choose their elected officials, not the other way around. The governor is committed to ensuring Virginians can elect their candidates of choice from fair and constitutional districts.”

With a Senate bill progressing in that chamber and Cole’s bill poised to move out of committee and to the full House this week, it’s possible one is amended or left alone in favor of another.

If that new bill, or one of the original bills, passes this year, it has to be introduced and passed again next session and then put out to a state vote before being added to the Constitution.