By David Daley and Katie Fahey
Something’s rotten in the state of Virginia. Legislative Democrats are on the verge of scuttling bipartisan redistricting reform and handing themselves unilateral power over the next decade of state legislative and congressional maps — embracing the same partisan gerrymandering that Democrats have so bitterly complained about when Republicans hold complete control.
In a last second power play Thursday, Democratic leaders in the House of Delegates moved to substitute an entirely new constitutional amendment and replace the one that has consistently won big majorities from both sides, and which polls show is supported by more than 70 percent of Virginians.
Their new plan not only bakes in an advantage for Democrats, but it restarts the clock on long-term reform in Virginia — pushing it after the 2021 redistricting cycle. Those maps would then be drawn by — ** checks notes ** — that’s right, the Democrats. Democrats know their new plan can’t pass, even with control of both chambers. It’s pure pretext with the consequence, intentional or not, of short-circuiting the only reform that can.
This is a bad faith move, and Democrats would be howling if Republicans pulled this partisan chicanery in a red state. And after Democrats have talked a good game nationally about fair maps and ending this anti-voter practice, it would be a setback for fair-minded, good government reform efforts nationwide if they walk away from change in the first opportunity the party has to walk the walk. Voters of all sides, across all the states considering reform, will rightly grow more cynical about change as they see this bipartisan deal fail.
Last winter, resounding majorities of both Democrats and Republicans embraced a compromise that would have given citizens a role in drawing maps for the first time ever, a meaningful step forward over politicians drawing their own lines, choosing their own voters, and handing themselves uncompetitive, safe seats for the next decade.
The proposed constitutional amendment cleared the House 83-15, and sailed through the Senate nearly unanimously, on a 39-1 vote. Virginia, however, requires any changes to its Constitution to pass during two consecutive sessions, with identical language, before heading to voters for approval. And in November, Democrats captured both houses of Virginia’s legislature, winning trifecta control of state government.
Now, suddenly, the very redistricting reform that Democratic majorities in both houses embraced — and that many newly elected Democrats who rode a blue wave to power promised to enact — is no longer good enough.
What’s changed? You only need a calendar to see through this partisan ruse. If Democrats can now manufacture flaws in the compromise they overwhelmingly endorsed just 12 months ago, and fail to pass the identical language a second time before the 2020 session ends on Saturday, there won’t be enough time for the ensuing statewide referendum before it’s time to draw new maps in early 2021. Voters — who deserve a chance to weigh in — will not get to decide.
It’s not a coincidence. If the commission is not enacted, control over the new maps reverts to the Democrats. They’ll be able to draw themselves a decade-long advantage. Maybe they’ll start the reform process anew, and maybe they won’t. Either way, any reform would be safely punted all the way to 2031.
The bipartisan compromise may not be perfect, but such is the essence of bipartisan compromise. Politics is the art of the possible. This is the best plan that can pass both houses of Virginia’s legislature, under either party’s control. Neither side likes to give up control of the maps. Virginia lacks the kind of statewide initiative process that allowed reformers in California, Michigan, Missouri and elsewhere to design their ideal and bring it directly to voters.
And so this compromise creates a mapmaking commission that’s evenly divided between legislators and citizens, and a careful process of checks and balance to ensure partisan fairness. But while it’s not completely independent of politics, no state legislature has ever voluntarily handed over more power over redistricting than in this plan.
The substitute amendment, meanwhile, while it does some nice things, doesn’t create a perfect process, either. It would create an 11-member commission that mirrors the state’s “political diversity.” Democrats don’t define what that means, but it’s easy to posit: They want a majority Democratic panel to ensure that this blue-trending state stays that way. (The criteria offers little protection against a commission that’s packed with partisans, as well.)
Democrats would strip the state Supreme Court of its power to appoint two special masters to break a commission gridlock. They insist the state’s highest court is a partisan body. One of the most vocal opponents of the amendment is Del. Mark Levine, who argued that the entire makeup of the high court could have a conservative lean in The Washington Post: “Every current member of the Virginia Supreme Court received a 12-year term from the Republican leadership of the House of Delegates. …Even more troubling, the House of Delegates that chose our Supreme Court was itself constituted via illegal racial gerrymander, according to a decision of the U.S. Supreme Court.”
Nevermind the fact that most of the justices have been elected unanimously — including one who was reappointed, again unanimously (including by Del. Levine), after Democrats took control in January.
If Democrats really believe the court’s integrity to be compromised, why do they keep voting for these justices?
Under their new plan, if nine members can’t agree on a map, two maps with at least majority support will be voted on by the legislature. But if Democrats use the “political diversity” provision and essentially control six members of the commission, and have also drawn the 2021 legislative maps, they’ll be handing themselves a license to gerrymander with no guardrails.
Some Democrats opposed to the compromise have insisted that every word of the amendment must be perfect if it is to enter into Virginia’s constitution. But now they’ve proposed a hurried substitute, weeks into their session, with less than 48 hours now remaining. The compromise was debated amongst legislators and citizens for months.
Democrats have bolstered the amendment through enabling legislation, and several legislators put thoughtful plans on the table that offered clear protections of minority voters — including a guarantee of diversity on the commission. These protections hold the same statutory weight in every step of the commission process as similar bills introduced during this year’s legislative session. These enabling bills co-sponsored by Democratic Sens. Louise Lucas and Mamie Locke are in the process of passing.
If Democrats did not want the amendment they passed last year, they could have prioritized reform weeks ago and worked to improve the amendment before this midnight hour, just as they prioritized the impressive electoral reforms they enacted this session. They could have passed the amendment, trusted the voters to decide, and then started a new amendment process to make it perfect. They did none of these things.
Instead, they chose to stall, run out the clock, and then offer a disingenuous, sneakily partisan, and dead-on-arrival proposal when it was too essentially late to make changes. They wanted to kill the compromise, ensure their own power over the maps and not make their hands dirty. But the mud is now everywhere.
This galling hypocrisy would be rightfully called out if it was being practiced by Republicans in North Carolina, Texas or Wisconsin. These maps are the building blocks of our democracy. They belong to the people. While no compromise pleases everyone, in every way, this one has the endorsement of the most respected non-partisan reform groups. For years now, after the effective GOP gerrymanders of this last cycle, Democrats have proclaimed that they want their ideas to prevail under fair maps. They had their chance. Now democracy itself will pay the price.
Because the next time Democrats say that? No one will believe them.
David Daley is the author of “Unrigged: How Americans Are Battling Back to Save Democracy.” Katie Fahey is executive director of The People, a nonprofit government reform group. She founded the nonpartisan Michigan anti-gerrymandering group Voters Not Politicians.