“The Gerrymander: a New Species of Monster” Boston Gazette, March 26, 1812. (Library of Congress Newspaper, Serials and Government Publications Division)

By Bob Lewis

A lot of people worked decades for this: taking decennial reapportionment of Virginia’s legislative districts from the self-serving hands of partisan lawmakers, at least in part, and giving the job to a new commission.

Finally, they believed, voters could soon pick their representatives instead of the other way around. And they were close, they believed. So close.

Led mostly by Democrats who had been in the legislative minority since the end of the 20th century, redistricting reform advocates believed their moment was at hand in the 2019 General Assembly. A commission had found traction at a transitional legislative moment with a clearly ascendant Democratic Party on the cusp of seizing control and Republicans, fearing that very prospect, welcoming a new commission that would spare them from the gerrymandering in the 2021 redistricting that they had inflicted upon Democrats in 2001 and 2011.

But the good-government group that had pushed the state constitutional amendment was about to learn a hard lesson in transactional politics. When push comes to shove and their power is threatened, politicians will work across party lines to preserve their prerogatives. That’s why Proposed Constitutional Amendment 1 now on every Virginia ballot feels like it falls short of the mark for some.

First, however, some background.

The state Constitution gives sole authority to apportion Virginia’s 100 House of Delegates districts, its 40 state Senate districts and its 11 U.S. House districts to the General Assembly and, by extension, the party in charge. The work of reapportionment begins again in earnest in less than three months.

The U.S. Constitution compels every state to perform this exercise in demography and geography each year immediately following the Census to ensure that each U.S. House member represents roughly the same number of constituents in Congress. Virginia’s Constitution requires compact and contiguous districts of the same population, meaning that, to the greatest degree practical, boundaries should not split communities of interest such as neighborhoods or voting precincts. For generations, dominant parties have trashed those precepts with impunity to maximize the number of districts favorable to their candidates and minimize those favoring their rivals.

It’s called gerrymandering, a practice nearly as old as the republic. Advances in digital information and computer analysis allow legislators to marry election data with fresh, granular Census data to engineer bespoke and often meandering districts, cherry-picking constituencies with microscopic precision to achieve partisan performance objectives.

Partisan gerrymandering, though vexing to the party out of power, is legal, the U.S. Supreme Court has held. It turns illegal when gerrymandering is racial in nature, concentrating Black voters into the fewest possible districts and minimizing their opportunities to elect candidates of their choice. Sometimes, racial gerrymandering — intentional or not — is inherent in achieving a partisan goal.

In the 2001 redistricting, a Republican-led legislature sketched a serpentine congressional district that took in as many Democrat-friendly precincts with African American populations as high as possible. It crept its way from Hampton Roads through select Peninsula precincts — at one point no wider than a bridge where it crossed a creek — before coiling itself around part of Richmond at its westernmost terminus. Crafting that Democratic super-district for Democratic Rep. Bobby Scott, then the only Black member of Virginia’s congressional delegation, produced several adjacent congressional districts tailored for Republicans.

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Federal courts have intervened to rectify egregiously gerrymandered Virginia constructs, including last year when judges redrew lines for 26 House of Delegates districts after finding that the Republican-controlled 2011 reapportionment shoe-horned too many Black voters into too few state House districts, much the way Scott’s district was drawn 10 years earlier. Republicans appealed the lower-court map that created six new Democratic majority districts all the way to the U.S. Supreme Court, where they lost a 5-4 decision.

At the start of 2019, optimism was strong that, at last, the Virginia Constitution would be amended to give an all-citizen panel ultimate say on divvying up districts without regard to partisan aims. It explicitly prohibited segregating communities of color into a few districts to leave more White (and presumably more conservative) voters in other districts.

No plan that cut legislators out of picking their constituents was likely to live long once in the hands of legislators. The original plan was gutted and replaced with what appears now on every Virginia ballot. It would establish a 16-member panel, half of them legislators with four each from the House and Senate and equal numbers of Democrats and Republicans from each chamber. The other eight would be citizen members selected by retired judges from lists prepared by legislators.

It’s a legislative move that Del. Lashrecse Aird, D-Petersburg and a leading advocate against the amendment, called “the ultimate okey doke.”

“Although it is a commission and although it is half legislators and half citizens, at the core of the matter, legislators are ultimately picking the entire commission and controlling the entire process,” Aird said. “It’s not independent by any means.

“There is nothing in this amendment that says we should make sure it is racially and ethnically balanced, that it is geographically balanced, that it is gender balanced. There is no language whatsoever to make sure that the makeup of this commission is representative of the commonwealth, and particularly of Black and Brown representation,” she said.

The commission also has a potential pitfall. Supermajority requirements could make it tough for the commission to agree on new district lines. Dissent from just two legislative members of the same chamber and same party would derail the commission’s work and put the Virginia Supreme Court in charge of drawing the lines.

Aird and members of the Legislative Black Caucus voiced their concerns, yet the resolution won easy bipartisan passage with overwhelming Democratic backing in 2019 — the first of two enactments in years separated by a legislative election required for amendments to the state Constitution.

After last fall’s election gave Democrats legislative majorities — and the power to dictate redistricting for the first time since 1991 — their intraparty rift over Amendment 1 widened. This year, just nine House Democrats supported the amendment, joining 45 Republican delegates to narrowly secure the required second enactment and send the amendment to voters.

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Now, with 2.2 million Virginians having already voted, Virginia Democrats present the conflicted and chaotic spectacle of party elders such as Sens. Mark Warner and Tim Kaine and U.S. Rep. Don Beyer endorsing Amendment 1 while the Democratic Party of Virginia campaigns to kill it.

Democrats also passed a new law that contains the explicit protections against racial and other forms of gerrymandering that were in earlier versions of amendment legislation. However, it would be up to the courts to hold lawmakers accountable for following that criteria, something they haven’t done in the past with compactness, for example.

A.E. Dick Howard, the University of Virginia law professor who superintended the state Constitution’s 1971 rewrite, says he shares some of Aird’s concerns and her preference for a fully independent commission.

“That would have been cleaner. It would have been a more effective way to prevent gerrymandering,” he said. But he said he will support the ballot amendment because “it’s an important step in the right direction.”

Howard said that while the text of Amendment 1 does not explicitly call out racial gerrymandering, it contains clear prohibitions against it.

“It does say that the districts are to be drawn in accordance with the 14th Amendment and the Voting Rights Act of 1965,” Howard said.

Another essential improvement under Amendment 1 is transparency for a process historically done in strict secrecy behind locked doors, limited to only a handful of power brokers. The amendment would guarantee public access to commission meetings and records, he noted.

So seven days and a wakeup before voting on the amendment ends, the Democrats’ dilemma boils down to this: did they come this far and get so close to fall short, or will they make the perfect the enemy of the good?