Subcommittee Wrestles with Legal Services Needs and Mapping Role

The Virginia Redistricting Commission’s Budget and Finance Subcommittee began its consideration of a budget for the new commission on May 19, and quickly decided it needed to make some fundamental decisions before it could proceed very far.

The subcommittee discussed a work plan proposed by the staff of the Division of Legislative Services. But it soon began debating two key issues: who would do the work of drawing the new districts and how many lawyers the commission would need?

Subcommittee members began by considering how much it should budget for legal support. At the commission’s last meeting, the DLS staff reviewed what other state redistricting commissions had spent on legal support, but noted that those costs had varied greatly, depending on whether the commission itself was sued or whether the state attorney general’s staff could provide legal support to a commission.

Democratic Del. Marcus Simon and Republican Sen. Stephen Newman said they wanted to clarify how much legal support DLS would be able to provide. Both said they felt it would be hard to find a law firm with redistricting expertise that was not associated with one of the two political parties, and said it might be like searching for “a unicorn.”  Newman said he was pretty sure that “unicorn” didn’t exist.

Brooks Braun of DLS said it was unclear whether the commission or the General Assembly would be subject to a lawsuit if the maps were challenged. He said that DLS “knows Virginia redistricting law,” but that the new criteria embodied in the constitutional amendment had not been challenged in court yet, and that DLS did not have as much expertise as others in interpreting the requirements of the federal Voting Rights Act.  

Democratic Sen. George Barker said the commission had discussed having two sets of general counsel, one for each party. “I think that is the way to do it.” Barker suggested that having lawyers affiliated with both parties would ensure that nobody’s interests were ignored. He said he did not anticipate that the commission would face litigation, and that the commission had been careful to follow Freedom of Information Act rules. As for the Voting Rights Act, he said, “I think the attorneys we hire would be able to advise on that.”

Barker said the budget should start with “those positions we do need,” and then asserted, “I don’t think we need a line drawer. I think we will be able to figure that one out.” Barker said, however, that the commission would likely need a consultant who could perform statistical analysis on the districts that were drawn. “All we need to do is to get someone who can handle that.”

But some of the citizen members pushed back on that. Democrat Greta Harris, one of the co-chairs of the full commission, said, “I am not an attorney and not a legislator, but I do hire lots of lawyers at my nonprofit.” While she said she was appreciative that some of the legislators were more knowledgeable about redistricting than she was, she said she found it hard to believe that the commission could not find a lawyer to handle its work. Harris said that she felt a law firm could be “bi-partisan in its advice.”

Harris had sat in on the first meeting of the commission’s Citizen Engagement Subcommittee and said that subcommittee was leaning towards holding more meetings than required by law. She said that could potentially be a substantial cost.

Budget and Finance Subcommittee Co-chair Sean Kumar, a Democrat, said he hoped the commission would be able to engage a single counsel who could be neutral. Kumar said that the spirit of the constitutional amendment was “removing partisanship from the process.” He wondered how commission meetings would work if each side had to meet with its lawyer privately, and questioned whether hiring two attorneys was the best use of taxpayer money.  

Barker responded, “I think we need to make sure we do two things: have experts that really understand the process, and have confidence among members that they are being given straight information that is useful.” Barker said it was “highly risky” to go forward with attorneys who had worked for only one party and “highly risky” to use an inexperienced lawyer.

Kumar observed that elected officials “bring historical knowledge,” but perhaps there were other ways of approaching the issue. He suggested that there might be constitutional law scholars or career lawyers from the State Attorney General’s office who could provide that kind of advice.

Barker replied that last year the state attorney general had told him it would not be appropriate for him to provide advice to the commission. At the end of the meeting, Kumar said he did not want to challenge Barker, but asked the DLS staff to confirm what role the attorney general’s office would be able to play. He said he would like to consider “the possibility of having competent legal minds who may not have a reputation for partisanship in the Commonwealth.”

To help guide the subcommittee, Barker volunteered to determine what the Senate Democratic Caucus spent on legal support when it drew the Senate maps in the 2010-11 round of redistricting. Newman offered to help get numbers from the Republican side, and DLS staff said they would report back on those numbers as well. Barker noted that the Republican-drawn maps for the House of Delegates and congressional districts were not reviewed by a “racial voting bloc analyst” and ultimately were successfully challenged in the courts.

Harris said that those figures would give the commission a starting point for crafting the budget, “even though this process is noticeably different this year.” In response to DLS Director Amigo Wade, Barker acknowledged that in 2010 the law firms already “had people playing around with how to draw maps,” but that they “didn’t have the same kind of depth of information about Virginia.

Newman applauded the General Assembly for moving to increase the per-diem compensation for citizen members to match what the legislative members received. The $1.0695 million that the General Assembly budgeted for the commission for each of two fiscal years “was our best guess,” Newman said, adding that if the commission decided it needed more money, it could be requested when the General Assembly met during the summer to review the budget. Kumar said later that even if there was an “unlimited” budget, he was still not sure he would want to hire two counsels.

Several members said that the full commission needed to first decide whether members would draw maps or whether it would rely on consultants to do it for them.

Harris shared that on May 21 she and Mackenzie Babichenko, the commission’s Republican co-chair, were going to get trained on how to use the mapping software that the General Assembly purchased last summer to support this year’s redistricting process. She said they would be able to report back at the commission’s next meeting on how challenging they found the map-drawing. That, she said, might inform the commission’s decision.

Mackenzie Babichenko, the Republican co-chair said that in a recent program organized by OneVirginia2021, she had been impressed by the way the new Michigan Redistricting Commission’s website was collecting and organizing the input it was receiving from citizens. (The public comment section of the Michigan commission’s website can be viewed by clicking here. In the presentation, which was co-sponsored by the League of Women Voters of Virginia, the website was demonstrated by a speaker whose presentation began at  the 20:00 mark of this video.)

Kumar agreed that the commission had to reach an agreement on its process in order to prepare a the budget. “If public input is not going to be able to be incorporated,” he asked, “why do it?”

Kumar challenged the subcommittee members to “draw from 10 years ago,” but added that this year’s process is a fundamentally different one. “The citizens who passed this wanted it done a new way. It’s not whether one party gets more seats.” He said it would be helpful if the DLS staff could prepare some initial pros and cons of having the commission drawing the maps. He suggested the commission might need to hire more administrative support if it was doing the work.

Barker still recommended that the commission draw the lines itself, “rather than hiring it out.” He added that “if we are doing it collectively ourselves, we’ll make sure that all of the things we have been talking about are factored in.” He said he was confident that the commission could come up with maps “that will be fair across the board,” and that it would much more productive in the end.

Harris said she applauded Barker’s “confidence in us.” But she noted that “because the process is so new” that the commission has “a lot of eyes on us.” She said that the commission could learn from previous efforts, but that the commission must put “our Virginia values out as our North Star.”

“We want to ensure that every citizen has an equitable chance to have their voices heard,” she added. “If we lead with our values instead of partisanship, we’ll end up with a map that is fair and just. For citizens, that’s why we wanted to be on this body.”

Wade of DLS said his staff would work to provide the commission with additional information, and said he didn’t want anyone to feel pressured to make a decision without the information they needed. He said he felt that DLS could provide the necessary information soon since it no longer faced the pressure of a General Assembly session.

The next meeting of the full commission is Monday May 24 at 10 a.m., where it may be called on to resolve some of these issues so that the budget planning can go forward.

–Sara Fitzgerald, LWV-Falls Church

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