The sun rises over the Virginia Capitol. (Ned Oliver/Virginia Mercury)

Virginia is closer to passing redistricting reform than ever. But anti-gerrymandering advocate Brian Cannon says both Democrats and Republicans are whispering that the idea is doomed if their opponents get power.

“‘You know, if the other side takes over, your amendment’s done.’ They both kind of say that,” Cannon said, describing what he’s hearing in an election year with control of the General Assembly at stake.

Despite the uncertainty, Cannon, the executive director of OneVirginia2021, remains optimistic that both sides will see a benefit in giving up the legislature’s power to redraw political maps, no matter who wins enough seats in November to wield it.

“I think this thing has a high likelihood of passing,” said Cannon, whose anti-gerrymandering group has spent years urging lawmakers to create an independent redistricting commission. Critics of the existing system — which leaves map-drawing power with the General Assembly — say it gives lawmakers free rein to draw their own districts with partisan advantage and self-preservation in mind.

With Virginia scheduled to redraw its legislative and congressional districts in 2021, the General Assembly representatives voters elect in November will decide whether or not to change the system ahead of a redistricting process that will shape state politics for years to come.

In February, the legislature gave the first of required several approvals for a constitutional amendment that would create a bipartisan, 16-member commission tasked with redrawing the state’s legislative and congressional maps every 10 years, starting with the year after the 2020 census.

The 1812 political cartoon that helped popularize the “Gerry-mander,” named for Massachusetts Gov. Elbridge Gerry. (Public domain via Wikimedia Commons)

How the commission would work

Eight state legislators and eight citizen members would serve on the commission.

The legislative seats would be split evenly between the House of Delegates and the state Senate, with each chamber sending two Republicans and two Democrats selected by party leaders.

The eight citizen members would be appointed by a selection committee made up of five retired judges. Both parties’ leaders in the House and Senate would each submit 16 potential citizen members to the selection committee. The ex-judges would pick two citizen members from each list.

Any proposal would need support from six of eight citizen members and six of eight legislative members in order to be sent to the General Assembly. Three of four Senate members would have to approve plans for the Senate, and three of four House members would have to approve plans for the House.

If the full General Assembly doesn’t approve a commission proposal within 15 days, the commission would submit a second plan.

If no plan passes, the Supreme Court of Virginia would draw the lines.

The governor, who currently has veto power over General Assembly-approved redistricting plans, would have no role in redistricting process once the commission is established. However, the governor’s office could shape the enabling legislation laying out the commission’s rules and procedures in greater detail.

 

In order for reform to happen in time for the 2021 redistricting, the amendment has to pass the General Assembly in the same form next year. Then it would need final approval from Virginia voters in the 2020 election.

There’s no guarantee it will get that far.

Some Republicans suspect the redistricting reform push isn’t as nonpartisan as it’s made out to be and that Democrats will lose their anti-gerrymandering zeal if they’re back in position next year to pass their own gerrymandered plans, potentially locking in a decade or more of Democratic governance. Some Democrats worry that Republicans — who have been shut out of statewide offices for a decade but still have slim majorities in the state legislature — will seize every opportunity to hang onto political power if given the chance.

The commission proposal — which calls for eight legislative members and eight citizen members — passed the state Senate unanimously. In the House, roughly a dozen Democrats opposed it, saying it left too much wiggle room for partisan gerrymandering and didn’t do enough to protect communities of color.

‘Just wanted to get something passed’

In a recent interview, Del. Lamont Bagby, D-Henrico, the chairman of the Virginia Legislative Black Caucus, said he still has strong reservations about the commission proposal.

“A lot of individuals that we trusted lost credibility by jumping on the first train that leaves the station,” Bagby said. “It was evident that African Americans weren’t fully considered. … And Republicans were taking advantage of individuals that just wanted to get something passed that was said to be redistricting reform.”

Bagby said he’s also concerned about the amendment’s backup mechanism if the commission or the General Assembly couldn’t agree on a redistricting plan. In that scenario, the Supreme Court of Virginia — which is appointed by the General Assembly — would draw the district lines.

“It’s been 20 years of Republicans putting members’ friends and family on the Supreme Court,” Bagby said. “I would not trust redistricting in the hands of the Supreme Court.”

The two most recent justices appointed to the state Supreme Court are Stephen McCullough, who once worked under former Republican Attorney General Ken Cuccinelli, and Teresa Chafin, the sister of state Sen. Ben Chafin, R-Russell.

The redistricting process that began in 2011, when Republicans controlled the House of Delegates and Democrats controlled the Senate, was successfully challenged in two racial gerrymandering lawsuits. Those cases led federal courts to redraw portions of the congressional map and the Virginia House map.

‘Both parties think they’ll be in power’

Redistricting reform proposals had long been blocked by House Republicans, but Speaker Kirk Cox, R-Colonial Heights, got on board this year after crafting a compromise measure that gives lawmakers a role in redistricting rather than handing the process over to a panel of outside experts.

At a candidate forum this week, Cox said the compromise approach — which hands some control to people with no self-interest in the maps but still gives the General Assembly an up-or-down vote — was a “nice combination.”

“I’d be supportive of that whether we’re in control or we’re not in control,” Cox said.

Speaking shortly after Cox at the same event in Chesterfield County, Sen. Glen Sturtevant, R-Chesterfield, said the amendment that passed didn’t go far enough because it doesn’t explicitly ban gerrymandering.

“Both parties think they’ll be in power and be able to redraw the lines. And both parties will try to gerrymander,” Sturtevant said.

Though Democrats have long touted nonpartisan redistricting as a priority, their legislative caucuses haven’t issued firm promises to support the amendment next year.

“We are hoping to flip quite a few seats,” said Kathryn Gilley, a spokeswoman for the House Democratic Caucus. “It’s going to be up to those newly elected members to say where they stand on specific legislation.”

‘Important to pass implementing legislation’

Some Democrats who voted for the amendment this year — even though they weren’t entirely happy with it — say its flaws can be remedied via a separate bill laying out more detailed rules and criteria for how the commission would work.

“People are unconformable with some aspects of this bipartisan commission,” said Del. Mark Sickles, D-Fairfax. “So it’s important to pass implementing legislation so there will be a better understanding of how the commission would work.”

The accompanying bill could include stronger measures to protect minority voting power. The amendment says the commission must comply with federal and state laws dealing with “racial and ethnic fairness,” including the Voting Rights Act. Supporters say duplicating Voting Rights Act-style protections in state law would safeguard against any future changes to federal law.

The bill could also ensure racial and geographic diversity on the commission.

“If we have all a bunch of white people from Northern Virginia, that would be a huge fail on a lot of levels,” Cannon said.

Bagby said he’s skeptical that the accompanying bill could resolve his concerns about the Supreme Court being the final arbiter in case of a deadlock.

“Something is not always better than nothing,” Bagby said. “What it appears we’re doing is we’re letting the same people that gerrymandered us for the last 20-plus years continue to do the same thing to us. Just with different hats on.”

Because voting rights are involved, any outcome under a reformed redistricting system could still be challenged in federal court.

Cannon said he believes the amendment can pass under all election-outcome scenarios, but “the path to victory is a little different under each one.”

If Democrats take full control, he said, they’d have the power to pass an accompanying bill that could get them close to the type of redistricting reform they’ve long said they support. If Republicans keep one or both chambers, he said, they may still see a benefit in eliminating the governor’s veto power and passing their preferred version of reform that continues to give lawmakers a role in the process.

“I don’t know that that keeps all of them,” Cannon said. “But it should keep enough for us to get this through.”