House of Delegates members walk past the south portico around at the end of the veto session at the Virginia State Capitol in Richmond on April 22, 2020. Legislation passed the same year created Virginia’s new Office of the Children’s Ombudsman. ( Pool Photo by Bob Brown/ Richmond Times-Dispatch)
If any Virginia delegates felt they didn’t get to talk about guns and minimum wage enough in the 2020 session, they might get the chance to have it out on the campaign trail in 2021, 2022 and 2023.
Under normal circumstances, the 100 seats in the House of Delegates are only up for election every two years. But — as it has with so many other aspects of civic life — the coronavirus pandemic could significantly disrupt Virginia’s legislative election calendar.
If expected census delays mean there’s not enough time for the state to conduct its once-a-decade redistricting in 2021 in time for the House elections next November, those contests might have to be held using the existing House map, according to state lawmakers and experts familiar with the process.
And if courts are uneasy about the prospect of letting winners serve full, two-year terms based on an outdated and constitutionally problematic map, they could order a special election to be held in 2022 once the new districts are in place.
In 2023, the House will have a normal election cycle using the new boundaries.
The scenario may sound far-fetched. But it’s real enough that state lawmakers are already discussing it as a possibility.
“My guess is if things don’t work out we’ll have to run three times in a row,” House Majority Leader Charniele Herring, D-Alexandria, said in a virtual town hall this week hosted by the Alexandria Democratic Committee. “First on the old lines and then the new ones.”
The dilemma arises from coronavirus-related disruptions to the U.S. Census Bureau, which has suspended some field operations to adhere to social distancing and asked Congress to extend its window to get an accurate count of who lives where. Those steps could also delay when states receive the updated population data they use to redraw their legislative districts and congressional maps every 10 years.
For most states, that wouldn’t necessarily be a problem. For Virginia and New Jersey, the only two states with legislative elections in 2021, it could be a big one.
If, as federal officials have proposed, Virginia doesn’t get the new data until late July, it would leave very little time for the state to parse the population numbers, redraw the lines and hold primary contests before the November general election.
“It’s a little unprecedented in the sense that the census has never not come out,” said Rebecca Green, a professor at the William & Mary Law School who co-directs the school’s Election Law Program.
Rushing through the redistricting process to try to meet the state’s election calendar, Green said, wouldn’t be a good idea.
“It’s a demanding process. There’s a huge amount of data to be taken into account. There’s an imperative to understand the different communities in Virginia and how they operate,” Green said. “It’s an incredibly complex process and it takes time to get it right.”
The state typically receives the redistricting data in late February or early March. In prior redistricting years, legislative primaries have been pushed back to August to allow more time for candidates, election officials and voters to adapt to the new lines.
“I’m thinking if we don’t get the data by May 1, then there’s just no way we could redistrict in time for the 2021 elections,” said Brian Cannon, executive director of redistricting reform group OneVirginia2021. “And even then it would be pushing it.”
Both Republicans and Democrats could see a benefit in running another election cycle using their existing districts, Cannon said. The current map, partially redrawn last year after courts ruled some districts were racially gerrymandered, helped produce a Democratic takeover of the House. Even though they lost seats last year, Republicans could stand to lose even more under a new map due to population growth in Democratic-friendly Northern Virginia.
“It’s way too early to be talking about running three elections in a row, but we’ll be ready no matter what the lines look like or when the elections are held,” said Garren Shipley, a spokesman for House Minority Leader Todd Gilbert, R-Shenandoah.
Because the Virginia Senate won’t have elections until 2023, the problem is unique to the House.
Virginia being in the middle of changing its redistricting process creates another complication. If voters approve a constitutional amendment this fall to relieve the General Assembly of its map-drawing duties and give those powers to a bipartisan commission, the state would have to navigate both a shortened timeline and a new process at the same time.
In a statement this week, U.S. Rep. Don Beyer, D-Alexandria, called the timing “very unfortunate.”
“The first concern has to be for the health and safety of census workers and the people in the households they are canvassing, but the new timeline is going to create enormous challenges for Virginia’s elections in 2021,” Beyer said. “The new, much later projection for the release of Census data, combined with Virginia’s newly adopted redistricting amendment will make it extremely difficult to get new districts in place in time for candidates to make their case to voters in those districts. There is still time for this to change but I am very concerned about the prospects and do not see a clear solution right now.”
The proposed constitutional amendment, which will be on Virginia voters’ ballots this fall, sets a July 1 deadline for the to-be-created commission to finish drawing its maps next year and submit them to the General Assembly for final approval. That deadline is flexible if census data comes in late, giving the commission up to 60 days to draw maps after receiving the data.
Either way, the process may be incompatible with the Census Bureau’s proposed timeline, which envisions giving states the new data by July 31.
That could become a sticking point in Democrats’ internal feud over whether the proposed amendment is an improvement on the current system or a fatally flawed compromise with Republicans that should be scrapped in favor of a new, Democratic-crafted plan.
When the topic came up during the Alexandria Democrats’ online event featuring several Democratic lawmakers, the discussion quickly turned into a debate.
Del. Mark Levine, D-Alexandria, an ardent opponent of the redistricting amendment, argued that the amendment’s timeline was unworkable.
“If the census information is delayed and the constitutional amendment is passed, we can’t do it,” Levine said. “It just can’t be done under the timeframe.”
Sen. George Barker, D-Alexandria, who sponsored the redistricting amendment, said the time crunch would exist no matter who draws the maps.
“‘Even if we were to be drawing the lines in the General Assembly… we would not be able to do that for the 2021 elections,” Barker said. “It has nothing whatsoever to do with who’s drawing the lines.”
After hearing his colleagues discuss the prospect of back-to-back-to-back House elections, Senate Majority Leader Dick Saslaw, D-Fairfax, who has served in the General Assembly since 1976, pointed out that it wouldn’t be the first time.
A court battle over redistricting led to House elections being held in 1981, 1982 and 1983, he said.
“They did it once before,” Saslaw said. “Running in 2022 and 2023, no big deal.”
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