Subcommittee Recommends Issuing RFPs for Partisan Counsels

The Virginia Redistricting Commission’s Budget and Finance Subcommittee voted, 5-3, June 2 to recommend that the commission issue two Requests for Proposals to hire legal counsel identified with each of the major political parties. The vote marked the first official division among commission members, and a divide, not only between the two parties, but also within the blocs of citizen and legislator members.

The motion was supported by the subcommittee’s two Republican legislative members, its two Republican citizen members, and Sen. George Barker (D-Alexandria). The vote came after a substitute motion, which would have recommended issuing an RFP for neutral or non-partisan counsel at the same time, was defeated by the same margin. The subcommittee’s two Democratic citizen members were joined by Del. Marcus Simon (D-Falls Church) in supporting that approach.

Sen. Stephen Newman (R-Forrest) continued to argue strongly in support of hiring two sets of partisan-affiliated counsel, and that the subcommittee should make a firm recommendation to the full commission. “I strongly believe you can’t do this with one counsel. . . , “ Newman said.  “I’m very concerned about having to bet on a single-interest group, because you’re going to have to understand where they stand. I’m very much in favor of a bipartisan approach: I think it comes with two counsels.” Newman’s motion in support of partisan counsel was seconded by Mackenzie Babichenko, the citizen who serves as the commission’s Republican co-chair.  

Barker said he supported seeking partisan counsels as “the wise course of action” that would “make sure everybody feels comfortable with the type of information they have been given.” Barker said he did not anticipate that the counsels would argue with each other, but rather that they would be able to explain different sides of an issue. Del. Margaret Ransone (R-Kinsale) said she agreed with Barker’s comments. “I look at this as a way for me to learn ways to defend our work. I want to understand both sides.”

Sean Kumar, the subcommittee’s Democratic co-chair, and Greta Harris, Democratic co-chair of the full commission, continued to argue in support of hiring a single counsel. Kumar noted that the RFP said the commission was seeking advice on interpreting the laws governing redistricting. “I don’t understand why it has to be partisan if you are giving advice on the law,” he said. Kumar again argued that it was a waste of taxpayer money to hire two counsels and that if the legislative caucuses wanted partisan advice, they should be the ones to pay for it. Kumar also contended that it was “short-sighted” to make a decision before the commission determined whether there were law firms or legal scholars who could provide neutral or non-partisan advice.

Harris also opposed the partisan approach. She said that while she had respected the “partisan process” that got the commission to this point, “this is something different.” The citizens of Virginia, she said, voted overwhelmingly to have a different process on redistricting.”  She added that “it doesn’t cost us anything to search out a law firm to give us counsel on the concepts that influence the decisions on map drawing.” Harris envisioned that her side would lose the vote, but said she still wanted to go on record in support of the non-partisan approach: “Citizens overwhelmingly asked that we get away from a partisan process.” She added that one of her chief goals for serving on the commission was to make sure “the process is level-fielded all the way around.”  

Simon said he opposed the motion because he felt the decision was not a budgetary matter, but one that should be left to the full commission to discuss. Before a vote was taken on Newman’s motion, Kumar introduced the substitute motion in support of issuing additional RFPs.  Kumar said, “I think we are remiss in our responsibilities if we are not even willing to consider that someone could give us sound, neutral counsel.” But his motion was defeated before the subcommittee went on to approve the original motion.

The commission is expected to vote on the question at its June 7 meeting so that the RFPs can be issued the next day. The draft RFPs are available here, beginning on page 24. 

Following the vote on the motion, Harris asked if the subcommittee’s vote would be communicated to the full commission as part of the recommendation. Marvin Gilliam, the subcommittee’s Republican co-chair, who presided at the meeting, said he had no objection, and Barker noted it was standard practice in the General Assembly to detail the votes of subcommittees or committees when a matter moved to the next body for consideration.

The subcommittee had scheduled a special meeting to give its members more time to review the RFPs. Newman, who had argued for the extra time, suggested two minor changes to the original RFP. He also objected to a provision that would have required responding law firms to provide the name and contact information for the opposing counsel in the three major cases they cited in their proposals. Brooks Braun, the Division of Legislative Services staff member who had drafted the RFPs, said he had taken that provision from an RFP that Arizona’s independent redistricting commission had used when soliciting firms identified with the political parties.  After some discussion, the consensus was to seek the names of the opposing counsel, but not their contact information. Newman observed that it seemed “weird” to request that information, as if the commission were seeking a reference.

Gillliam thanked Newman and Barker for their comments. “We’re all neophytes in this, so we’re glad” to have the advice of people who have previously worked on redistricting.

Earlier in the meeting, DLS Director Amigo Wade said he had heard back from the Office of the Attorney General on whether it could provide legal services to the commission. (Barker said he had already asked the office that question, but Kumar asked Wade to ask again on behalf of the commission.)

Wade said the office had said it was happy to help the commission procure legal counsel, but that  redistricting was a specialized area of the law in which it did not have expertise. In the past, the office said it had relied on special masters if maps needed to be redrawn. Wade said the office had also identified some potential conflicts of interest it might have with defending the commission’s work. Its first priority, it explained, was to represent executive branch agencies and that might include the Virginia Board of Elections. In addition, a new Virginia Voting Rights Act becomes effective on September 1, establishing a role for the Division of Civil Rights to become involved as a third party in disputes involving redistricting.

On another matter, the subcommittee voted unanimously to recommend that the commission issue a just-drafted RFP for communications and outreach services. The RFP can be reviewed here, beginning on page 41.

The RFP appears to respond to comments that have made to the commission. It seeks a non-partisan consultant who would manage media relations and social media outreach, including communications through Facebook, Instagram and Twitter. The consultant would also work with the commission’s “web developer” to improve the commission’s website to better accept and synthesize public comments for the commission’s review. While a contractor is expected to work to “ensure robust attendance” at public hearings and “public participation,” the RFP does not specifically ask a contractor to address the issues of reaching out to communities that speak a language other than English, to addressing accessibility issues or to address the needs of rural communities or urban households that do not have full access to the Internet. 

It was also agreed by consensus to refer DLS’s proposed budget to the full commission. The latest version of the budget can be reviewed on page 1 of this document. There was a consensus that the budget was simply a “working document” that could be changed as the commission made future decisions, such as the law firms that were hired or the kind of map-drawing services it needed. So far the commission has spent or allocated just over half of the $2.139 million it has available to spend over two fiscal years. Wade suggested changing the line item listed for “map drawers” to “map-drawing services” until the commission decided how it wanted to proceed on that item.

–Sara Fitzgerald, LWV-Falls Church

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