‘Who do you think controls this?’ In redistricting reform battle, a sharp split on the role of legislators

First in a two-part series on the debate surrounding the redistricting reform amendment on Virginians’ ballots this fall. Tomorrow: Race takes center stage in the war of words. 

The group for it is called Fair Maps VA.

The group against it is called Fair Districts VA.

Both say they’re working to end gerrymandering, and both say it’s the other guys who want to keep it around. They both use the same anti-gerrymandering talking points, like “Voters should choose their representatives, not the other way around.”

The Democratic Party of Virginia is officially against it. But two of its top figures, U.S. Sens. Mark Warner and Tim Kaine, voted for it on their own ballots already. It passed out of a Democratic-controlled General Assembly this year, but Republican leaders and conservative groups are urging their voters to support it.

Against that confusing backdrop, it’s understandable that many Virginia voters, particularly Democrats who for years have heard their party leaders talk up the urgent need for redistricting reform, don’t know what to make of ballot question 1. It asks if the state should create a 16-member, bipartisan redistricting commission to redraw Virginia’s congressional and legislative maps every decade starting in 2021 as new census data comes in.

For years, those who wanted to see redistricting power taken away from the General Assembly pushed for an independent, non-partisan commission, envisioned as a group of citizens who would draw fairer lines than self-interested politicians looking to juice their party’s numbers or protect their own seats. 

The proposed constitutional amendment on the ballot this year doesn’t do that, giving half the commission seats to sitting legislators and half to citizens nominated by legislators and appointed by retired judges.

That’s one of the main shortcomings some Democratic lawmakers are highlighting to argue the plan wouldn’t really reform anything, instead allowing a smaller group of politicians and the politically connected to wield redistricting power. Rather than putting a flawed plan in the Constitution and maybe improving it in time for 2031, they say, it’s better to take the time to get it right.

“People across the board that think it ought to be a citizen-led process should all vote no on this,” said Del. Marcus Simon, D-Fairfax. “The amendment moves us in a direction that cements legislator involvement.”

That argument has been maddening for amendment supporters. If those insisting they want true independence from the General Assembly get their wish and the amendment is defeated, supporters point out, the General Assembly keeps its constitutional power to draw maps. That means no independence for the 2021 process, but a general promise to do something for 2031. 

“Gerrymandering is cemented into the system now. Who do you think controls this?” said Brian Cannon, executive director of redistricting reform group OneVirginia2021. “It’s a false understanding of the status quo at best.”

That point is reinforced by the state’s official text explaining the amendment to voters, which says a no vote “will leave the sole responsibility for drawing the districts with the General Assembly and the governor.” Opponents have quibbled with that explanation. But it’s legally required to be both neutral and factual, and the Supreme Court of Virginia refused to hear a challenge claiming it isn’t.

Some redistricting reformers say they’d like to see something similar to the California Citizens Redistricting Commission, 14-member, all-citizen panel made up of five Democrats, five Republicans and four people with no partisan affiliation. California’s application process is overseen by the state auditor, but partisan leaders have an opportunity to strike applicants they find objectionable.

Regardless of where legislators stand on how much independence from partisan players a good commission needs, there wasn’t enough support in the General Assembly to make a fully independent commission feasible for 2021.

The compromise plan that emerged was the product of a unique political moment, with control of the General Assembly up for grabs in 2019, when Republicans and Democrats weren’t sure which party was going to be in charge for the redistricting year.

Though some opponents have characterized the amendment as a scheme hatched by Republicans, the proposal for a commission with an equal number of legislators and citizens was introduced in early 2019 by Senate Democrats. That resolution became the amendment that passed a Republican-controlled legislature in 2019 and a Democratic-led one in 2020, despite the partisan power shift in between. Under Virginia’s system, it had to pass two years in a row before going to voters for a final up-or-down decision. 

After passing with overwhelming bipartisan support in 2019 despite objections from about a dozen members of the Virginia Legislative Black Caucus in the House, the amendment was almost blocked in 2020 as House Democrats abandoned it in droves. Nine House Democrats joined with 45 Republicans to pass it 54-46.

If Democrats had chosen to scrap the amendment this year and start over, it would’ve killed any chance for constitutional changes in time for the 2021 process.

Several senior lawmakers said allowing some legislative role was critical to drafting something with broad, bipartisan support, the idea being that elected officials are more familiar with how redistricting works and the geography of the areas they represent.

“If you just had straight citizens, who’s to say how that’s going to turn out?” said Senate Majority Leader Dick Saslaw, D-Fairfax, who supports the amendment and called arguments against it “pure bullsh**t” during the 2020 regular legislative session. “We did not put a provision in the bill, which some of the legislators wanted, that incumbency would be taken into effect.”

Under Republican control, the Senate passed several redistricting reform plans that routinely failed in the House. That changed in 2019, after a federal court ruled 11 majority-minority districts drawn in the Republican-led, 2011 redistricting had been unconstitutionally racially gerrymandered. That ended with the court redrawing the maps for the 2019 elections, signaling that Republicans were in serious jeopardy of losing their majority.

Explained: What went wrong with the 11 disputed House Districts, including a Republican delegate’s ‘murky recollection’ in court

In an interview, Del. Kirk Cox, R-Colonial Heights, the House speaker in 2019, said that seeing a court-appointed expert from California redraw his district and others changed his thinking on redistricting reform. But he still felt legislators should be involved.

“They know the process,” Cox said. “It’s almost like having a commission that deals with police reform, a citizen commission, and not having anyone who’s actually been in a squad car or ever done it.”

The amendment’s critics say the bipartisan history of gerrymandering shows why they’re pushing for a stronger break from how things have been done in the past.

“To me, if you drew a map that they threw out as unconstitutional against Black people, you maybe shouldn’t be invited back to that table,” said Del. Marcia Price, D-Newport News. 

During the 2020 session, Price pushed for an alternative, non-binding commission that would have included more prominent protections for minority communities. But she was forced to amend her proposal to include seats for legislators, commenting at the time that she was told she “did not have the votes” for a commission that banned legislators.

Her bill ultimately failed to pass, but many of the House Democrats now saying they can only support a truly independent commission voted for it, even with the seats for legislators added.

Simon acknowledged that a fully independent commission was a tough sell.

“It was impossible in 2019 because Republicans don’t believe in it,” he said. “It became really difficult to do in 2020 because Democrats in the Senate were wedded to their commission they had come up with.”

Others see a simple explanation for why some House Democrats are reluctant to vote for something that would force them to give up their power: They see a chance to use their hard-won majority to draw maps in their interest just like Republicans did in 2011.

“Once you come to that conclusion, you have to come up with some reasons why you’re opposed,” said Cox.

Other arguments against the amendment have centered on the perceived lack of attention to diversity and racial representation, as well as the potential role for the conservative-leaning Supreme Court of Virginia. Critics have suggested that, since either party can deadlock the commission and send the map-drawing process to the Supreme Court, Republicans might choose to take their chances with judges appointed under Republican legislatures.

Supporters have dismissed those concerns as overblown, noting the Supreme Court has recently upheld Democratic positions on major issues like a gun ban at the state Capitol and Gov. Ralph Northam’s COVID-19 shutdown orders. They also point out that the new proposed process will be public, unlike current redistricting, in which lawmakers hash out district lines behind closed doors.

Some Democrats claim they’ve already solved partisan gerrymandering by passing redistricting criteria legislation that says the statewide maps cannot “unduly favor or disfavor any political party.” But alleged violations of that broad standard may be difficult to prove or disprove, and would most likely require a ruling from the state Supreme Court, which tends to defer to legislative authority where laws are vague or ill-defined.

The amendment has been endorsed by numerous newspaper editorial pages, civic organizations and national good-government groups, including the League of Women Voters, the ACLU of Virginia, Common Cause, the Virginia Chamber of Commerce, the Princeton Gerrymandering Project and the Brennan Center for Justice at New York University Law School.

“This is the best the Democrats could do in Virginia,” David Daley, a gerrymandering expert and author of the book “Ratf**ked: Why Your Vote Doesn’t Count,” said at a recent press event with redistricting reform supporters. “And if we’re going to have a process in Virginia in 2020 in which citizens have any seat at the table, this is the way to do it. If this does not happen, the Democrats will have complete control of the process.”

The amendment’s most prominent opponents include the Democratic Party of Virginia (which is officially urging Democrats to vote no on sample ballots and other literature), the Virginia conference of the NAACP and progressive advocacy groups like Progress Virginia and New Virginia Majority.

A recent poll conducted by Christopher Newport University’s Wason Center for Public Policy found significant public support for the amendment, with 48 percent of voters in favor, 28 percent opposed and 24 percent undecided.

Though some party leaders have flipped their positions on redistricting reform, the poll suggested rank-and-file voters may not be getting the message. It found 64 percent of likely Democratic voters in favor of the amendment, and Republicans more likely to oppose it.

Still, support for the amendment was weaker than what prior polls on redistricting reform have shown.

“Virginians are learning that Amendment 1 is not independent, nor is it non-partisan,” Del. Lashrecse Aird, D-Petersburg, said in a statement released by anti-amendment group Fair Districts VA.

Amendment supporters are cautiously optimistic that it will pass. Del. Sally Hudson, D-Charlottesville, a progressive, first-term lawmaker who was one of the nine House Democrats to vote for the amendment, said that’s what makes opposition a “safe play for progressives” who “get to say they were holding out for better without being on the hook if it fails.”

“If this amendment passes there will be nowhere to hide in the next round of reform,” Hudson said. “The only step forward will be full independence. Because that’s what’s hard about the politics right now. People who want more reform and people who want none can come together to oppose the amendment. But they can’t come together on an alternative.”