Subcommittee Approves Two-Pronged Approach on Legal Services

The Virginia Redistricting Commission’s Budget and Finance Subcommittee voted, 8-0, May 25 to prepare two sets of RFPs for legal counsel, one that would anticipate hiring lawyers who had done work for each of the political parties and one seeking to hire non-partisan counsel that would represent the commission as a whole.

A discussion of legal representation again consumed most of the subcommittee’s second meeting as it worked on preparing a budget for the full commission to approve at its June 7 meeting. Legislators, particularly Sens. George Barker (D-Fairfax) and Stephen Newman (R-Forest), continued to argue that it would be difficult to identify non-partisan lawyers, that using partisan lawyers would help ensure that the General Assembly would eventually approve the commission’s proposed maps, and that, in Newman’s words, the task of identifying a non-partisan counsel would “double” the amount of interviewing work the commission would have to do. But the subcommittee’s Democratic citizen members continued to push back at those arguments.

After Division of Legislative Services staff members said they could adapt a draft RFP to pursue both options, the subcommittee voted to recommend that approach to the full commission.

At the start of the meeting, DLS Director Amigo Wade reported back on what his staff had been able to find out related to the costs of legal services procured by the General Assembly’s caucuses in the last two redistricting cycles; Wade said that so far, DLS had only received figures from the Democratic side of the aisle. In 2001, he reported, the House and Senate Democratic caucuses had contracted with the same law firm for services that were capped at $250,000, a figure that had anticipated support for litigation. Wade noted that the fees included help with map drawing and monitoring the U.S. Department of Justice’s “pre-clearance” process under the Voting Rights Act, a hurdle that no longer exists. Wade said the caucuses spent about $100,000 in that cycle. In 2011, when the Democrats controlled the Senate but not the House, the two caucuses retained separate counsel; the Senate’s tab was about $130,700 and the House’s $50,000, he said.

Barker noted that in 2001, before he was elected to the Senate, the Democrats had anticipated that they would challenge the maps, and that they did, but unsuccessfully. Barker said the lawyers had helped the caucus review the maps for criteria such as the compactness of the districts and their racial make-up.

Newman recalled that when the Republicans were not in the majority, “we were going to vote no” on maps the other side proposed. In 2001, he recalled, the party had relied primarily on the DLS staff, not outsiders for its legal support. Wade agreed that in that cycle, the DLS staff had put proposed maps into “the system” and then reviewed whether it was “an appropriate district.”

Wade said he had not yet gotten a ruling from the Attorney General’s Office on what services, if any, it could provide to support the commission. At the subcommittee’s previous meeting, Barker had said the office had told him it could not provide any legal support to the commission, as is the case in some states with independent commissions.

Del. Marcus Simon (D-Falls Church), who is going through his first redistricting cycle, observed, “In the old system, the caucus planned to draw maps as best as it could, and the party out of power would try and sue. . . . That was the way we did redistricting in the past. I hope this will be a much improved process. The goal of all of us is to produce a map that no one will be eager to sue us out of the gate.” Simon said that based on the full commission’s discussion the day before, he had been imagining commission members working at drawing maps together with a lawyer sitting with them if they needed advice. “Is that the vision of how we would use the lawyers” he asked. “Do they give advice upfront or review what we have done?”

The commission’s Democratic Co-chair Greta Harris, who had tried her hand at mastering the commission’s map-drawing software last week, said she hoped that legal counsel “would give us guidance around our core priorities.” She said she still hoped that the commission could hire a single counsel and that it sounded “stressful” to have two lawyers giving advice, and “the answer is to ‘put it down the middle.’” Harris said “there is a higher calling for all of us to find one counsel” who could help the commission stay within “the spirit of the law.”

Sean Kumar, the subcommittee’s Democratic co-chair, said the commission would soon need to make a decision about the criteria it would follow in drawing its maps, and that the commission should be able to agree that it would need help in articulating that in a legal manner. He said he agreed with Harris that “this doesn’t look like what we did in the past.” He expressed concern that hiring partisan counsel would create a perception that the citizen members were “just along for the ride.”

Marvin Gilliam, the subcommittee’s Republican co-chair, then called on Barker and Newman to reiterate the reasons they opposed the idea of a single counsel. Newman continued to argue that the practice of this kind of legal specialty breaks down along partisan lines, and that pursuing non-partisan counsel would delay the hiring of legal support until July.

Newman acknowledged that his argument was “not popular out there.” But, he said, the process set up by the constitutional amendment, “is very much a bi-partisan process. Some of us wish that it was non-partisan, but it isn’t.” He referenced the amendment’s requirement that any proposed map must be approved by three out of the four legislative members on the commission who would be impacted by the map, and observed, “There are a lot of ways for this process to fail, and for it to go to the courts. I would really hope that this does not fail, and that you would not have both senators from one party voting against a plan. That stops the process.”

Kumar responded, “The amendment is not perfect; I don’t think anyone is going to think the districts are perfect.” But he said that “people could view this as ‘incumbents versus citizens.’ The citizen are all concerned with what are the best districts. The legislative members have majorities to consider—no dig at them. The less partisan we make the process, the better. The citizens were appointed by the parties, but we had to be relatively non-partisan to qualify. A lawyer is there to advise you on the law, and everything we do is going to be done in these meetings.” Kumar added that he was “open-minded” about the cost and the best approach, but that he was not talking about “whether we get more Democrats or more Republicans or incumbents,” but whether “the maps meet the law.”  

Harris said she agreed with Kumar and also with Newman that “we are all here working together and we don’t want to fail.” She said citizen members wanted to create “a map that is as fair and just as possible.” She acknowledged that might sound “very naïve,” but they were “trying to represent the citizen voice being lifted up in an equitable manner.” She said she still believed “there could be a firm that could look at the desires of the client, in this case the commission,” and that could “respond to what we want.” But if that was not the case, she supported seeking partisan counsel at the same time.

In response to a question from Gilliam, Simon said hiring partisan counsel might make the legislators’ sales job easier when they sought approval of the commission’s plan from their General Assembly caucuses. But he said he “wouldn’t be surprised” if caucus leadership retained its own counsel anyway.  He concluded, “I don’t know that having a single counsel is fatal,” but that it would help “to say we had our attorney in the room.”

Del Margaret Ransone (R-Kinsale) said she agreed with Barker and Newman. She noted that as a commission member, she was not able to communicate with members of her caucus right now, but that it would help to be able to assure them that the legislators had had partisan advice. “What we want is a defensible map for all Virginians, not just elected officials,” she said, before concluding that it was “important to have attorneys on both sides.”

Kumar then suggested that perhaps partisan attorneys could be brought in later in the process, and that in the meantime the commission might be able to get advice from the DLS staff, the Attorney General’s Office or a law professor.

Newman said the commission would need to make some decisions upfront, and said that one of those would be the permissible deviation of the legislative maps. He said that that was “an important item,” and that it would be necessary to interview non-partisan attorneys to understand where they stood. Harris then supposed that a Republican counsel supported a 2 percent deviation and a Democratic counsel supported 5 percent. “Do they compromise on an agreement? Wouldn’t you end up with the same result as one counsel?” she asked.

Newman replied, “Ultimately your committee and subcommittees will take the advice of both, and you’ll figure it out, and you’ll have the information of those who may ultimately be suing us.” The compromise, he said, “would thread the needle.”  Barker added that with two sets of counsel there was less chance that the maps could be successfully challenged by the General Assembly or an outside group because the commission had failed to address a particular issue.

Gilliam said that from a business perspective, cost was something that he looked at closely, and that sometimes “you have to spend money to make money.” He said that he thought “to get the best representation,” it sounded as if the commission needed two attorneys. He pressed his subcommittee to decide the issue at the meeting.

Simon then asked whether it would be possible to issue multiple RFPs and keep on the commission’s proposed timeline. DLS staff member Brooks Braun, who had prepared a draft RFP that was distributed right before the subcommittee meeting, said that it was based on RFPs the Arizona commission had done, asking lawyers to detail information about the clients they had represented and other partisan activities. He said that this year Arizona had issued an RFP for one or more legal counsel to “see what came back.” Newman said he was concerned about the time it would take to evaluate a non-partisan counsel. “If we make a decision to go with one, that’s fine, if we go with two, that’s better.” Kumar mused whether soliciting partisan attorneys “might be grounds for a challenge.” An open-ended approach, he said, “lets us accept bids from anyone.”

Mackenzie Babichenko, the full commission’s Republican co-chair, reminded the subcommittee that the full commission still had to approve any decision the subcommittee made. She advocated preparing an RFP that would cover all the options so that the commission could make “an educated vote” at its next meeting. Kumar then moved that the subcommittee ask the DLS staff to prepare two sets of RFPs for the commission to review, one that would envision representation for each party and one that would seek counsel that would represent the commission. Harris seconded the motion.

After Newman again expressed concern about the time it would take to screen a non-partisan legal representative, Kumar asked Wade what process the commission would need to follow before hiring professional services. Wade responded that typically the first choice would be interviewed, and if agreement could not be reached on the contract price, a body would move on to its second choice.

With that, the motion was approved unanimously.

The subcommittee then directed the DLS staff to prepare a draft budget for its May 27 meeting, and to build in the best estimates it could for other services the commission would need, such as a racial voting bloc analyst. The subcommittee again debated whether it would need to hire a professional map-drawer. Barker said he thought that DLS staff members were “clearly capable of working with us.” He added, “A line drawer can come in and make things look great, but those of us who are responsible for it, need to be involved and to reach a consensus where everyone is pulling in the same direction.” Braun of the DLS said it would depend on “what criteria you establish and where you start at. . . and how fast you want to get to the end point.”

Harris suggested putting a line item for a professional map drawer in the budget so the commission would have the resources available if it decided it needed one. Kumar agreed, noting that map-drawing was “an art and a skill.” He said he understood “that some of our elected members have that experience,” but that “this is an area where I could see it might be viewed as not equal from citizens and legislators.” He noted that the decision of starting “from scratch versus starting from current districts” was viewed differently by citizens and legislators, and that “the reality of getting those past the legislature may be different.”

Newman supported Harris’s suggestion, noting that an expert might be retained on an hourly basis to “clean up” lines that had been flagged as problematic or with “last-minute moves.”

The subcommittee then directed the DLS staff to draft a budget for the commission to approve that would reflect the kinds of services it might decide it needed. Barker said he thought the commission was going to be “in a pretty good position from a fiscal standpoint,” and that this approach would make it easy to arrange for the services it needed without having to go back to the full commission for approval. The DLS staff agreed to prepare a draft budget for the subcommittee’s next meeting, one that would include the Citizen Engagement Subcommittee’s recommended $250,000 budget for outreach and public hearings. It also agreed to prepare “bare-bones” RFPs for the subcommittee to review for the kinds of services that the commission might decide to arrange.

 

–Sara Fitzgerald, LWV-Falls Church

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