Decision on Hiring Legal Counsel “First Real Test” for Commission

The full Virginia Redistricting Commission met virtually on Monday, June 7 to hear reports and act on recommendations from the two subcommittees – Citizen Engagement and Budget and Finance.  

Votes were unanimously in favor (15 – 0) of the Citizen Engagement Subcommittee’s recommendation to hire a Communication and Outreach Coordinator and approve the Request for Proposal (RFP) for that position with allowance for procedural adjustments by DLS staff.  When attention turned, however, to hiring legal counsel, the discussion was much more divided and described by Del. Marcus Simon (D-Falls Church) as the “first real test” of the Commission.

On June 2, the Budget and Finance Subcommittee had voted 5-3 to recommend the commission issue two RFPs to hire legal counsel identified with each of the major political parties.  The debate continued in Monday’s full commission with Democratic citizen members James Abrenio and Brandon Hutchins joining in support of the less partisan approach of hiring a single counsel. Sean Kumar actually attended by Zoom while in Japan with the U.S. Army Reserve. Speaking for the first time on the topic, Abrenio said “It’s hard to understand why it would be difficult to just put out an RFP.  A good attorney can identify issues from left and right.  I would rather have one very good attorney who has a complete understanding rather than two different purely partisan attorneys.  This is a big decision.  Why not investigate?” (For more full debate on hiring counsel, see the June 2 Blog.)

Despite testimony from citizens (see below), those advocating for one nonpartisan counsel did not have enough support to outweigh the ten commission members who were strongly in favor of hiring two counsels – one Democrat and one Republican.  Senator George Barker (D-Fairfax) expressed concern that he “didn’t want to start down a path where there is unease with the attorney if just one.” Republican citizen Richard Harrell added “We are not a nonpartisan commission.  We are bipartisan. If I am to be informed, I need to have the best advice of the best Republican and the best Democrat attorney because they are most likely to give me the best information. (The “client” is the full Commission, not the two parties.)  Republican citizen Jose Feliciano commented for the first time – “The bottom line is simple.  This is a bipartisan commission.  It makes sense to have a lawyer from each.  We will not find the “unicorn.”  (One nonpartisan lawyer capable of fairly representing the full commission.)  “It may make us feel good, but reality is reality.”

In a series of votes (10 – 4), the full commission voted (10 -4) against searching for nonpartisan counsel, choosing instead to issue two RFPs to select one Democratic firm and one Republican firm. Democratic Senators Mamie Locke (D – Hampton) and George Barker voted with the eight Republican commissioners.

Delegate Marcus Simon (D – Falls Church) continued to vote as he had in committee with the three Democratic citizen commissioners – Kumar, Abrenio and Hutchins.  Commission Co-chair Greta Harris had earlier voiced support for an extra RFP for nonpartisan counsel, but she was not able to vote due to having to make a plane flight.  Delegate Delores McQuinn (D-Richmond) was present earlier but not for the votes because she had another meeting to attend.

At one point in the meeting, Harris announced she was in favor of an RFP for a nonpartisan counsel and against hiring two separate law firms.  When the first vote was counted as 10-4, Del. Simon corrected  that the vote was actually 10 – 5.  Co-Chair Mackenzie Babichenko, who was presiding, pointed out that proxy voting had not been decided and it is difficult to take it up in the middle of a vote.  Because it is not current procedure, Harris’ vote was not allowed so the vote remained 10-4.

For the first time, the public was able to weigh in before a Commission vote.  Del. Simon requested an opportunity to listen to the public comment before they take a vote because the public had not had an opportunity to speak during the subcommittee meetings.  It was decided to go out of order to hear from the public at that point rather than at the end of the meeting. 

DLS staffer Claire Waters read written testimony by Sara Fitzgerald of Falls Church who urged the Commission to continue to search for a compromise and issue RFPs for neutral or non-partisan legal counsel (as well as the partisan RFPs).  “There will still be time to make a decision from a bigger pool of respondents by early July.”  Waters also read an applicable excerpt from comments by Christine DeRosa of Arlington – “I have written about my disappointment in the highly-partisan discussion about hiring two sets of legal counsel. I still hope that RFPs can be issued for a neutral, non-partisan legal team – as well as two RFPs for Democrat and Republican legal teams.” Live testimony was also heard from four persons who had previously signed up.  Erin Corbett, speaking on behalf of the Virginia Civic Engagement Table, was the only one to specifically address the hiring of counsel.  She thanked Del. Simon for “advocating for this space” and said there is a clear need for a third RFP to “ensure this is not a party driven endeavor.”

Moving to the report of the Citizen Engagement Subcommittee, several unanimous votes were taken in favor of the Subcommittee’s recommendations.

The vote was unanimous (15 -0) to schedule eight hearings before the maps are drawn and eight after they are developed but before they are presented to the General Assembly.  Half will be in-person and half virtual and they would be held in each of the eight regions defined by the Weldon Cooper map.  At least four commissioners would attend each of the hearings and staff were authorized to choose locations and times. (Sen. Locke hadn’t yet arrived at this early vote.)

Subcommittee co-chair Richard Harrell pointed out that they were careful to include the “eastern region” which did not have a hearing in 2011. Citizens can attend their closest in-person hearing and that virtual comments could also be made at in-person hearings.  Abrenio asked about a decision re the possibility of additional hearings if needed.  Harrell responded they “might wait a while before throwing in another one or two.”

Babichenko mentioned that for the 4 members in attendance, there needs to be a balance between parties and citizens and legislators, so everyone is represented.

When Kumar voiced concern about the exact dates, DLS Director Amigo Wade suggested there could be further discussion on the dates. Co-chair Babichenko suggested a poll with current dates as a starting point.  Sen. Barker reminded the Commission that there will be at least one or two General Assembly special sessions in the summer or early fall, but they do not know exact dates yet.  Babichenko responded, “We may be making more changes than thought.”

Citizen Engagement Subcommittee Co-chair James Abrenio described their detailed recommendations for Public Participation Guidelines.  Sign-up for live testimony could be done virtually at least 24 hours in advance or in-person up to ten minutes after the hearing started.  There would be a three-minute limitation and speakers would be on a first come first served basis.

Kumar asked, “what are we going to do with the input?”  He had concerns about cataloging and how to aggregate and use the information for their work.   Wade reported the budget included an amount to have in-person hearings broadcast and DLS staffer Brooks Braun said a component of the RFP includes a method of cataloging the information. 

Discussion also followed questions about limiting sign up for in-person meetings to no later than ten minutes after the hearing begins.  There were concerns that public hearings should err on the side of allowing more opportunities, particularly since these would be the only times the commission would be meeting in their area. Others felt there needed to be a limitation after the hearing has begun because it could go on for hours and the quorum could be lost.  Sen. Ryan McDougle (R-Mechanicsville) suggested the compromise of limiting sign-up to one hour after the meeting starts and all agreed to the amendment.

Commission co-chair Mackenzie Babichenko reported that most of the Commission’s work for now will be happening in the subcommittees.  There may be no need for a full Commission meeting every two weeks, but the time slot on Monday mornings should still be kept available.

Three other persons who registered to make public comments at the June 7 meeting were heard earlier at the same time as those specifically addressing the hiring of counsel.

Christine DeRosa, Co-chair of the Redistricting Committee of the LWV-VA, reminded commissioners that “Transparency is a key strength of this new redistricting process.” In addition to previously mentioned comments re legal counsel, she made several recommendations re public engagement and drawing the maps.

Ken Chasin, an IT specialist from Charlottesville, appeared again, this time to propose a “divide and conquer” strategy which would divide map drawers into three teams each devoted to redrawing the state’s congressional district maps, state senator election maps, or state delegate election maps. Chasin’s proposals were also in written comments.

Yolanda Roussell, President of the Stafford NAACP, asked “Will this commission mandate citizen participation in all counties and cities?”  Co-chair Babichenko thanked her for the question and said the Commission would discuss it.


LWV-VA Observer Corps: 

Peggy Layne, LWV-MC

Carolyn Caywood, LWV-SHR

Candy Butler, LWV-FX

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