Budget Subcommittee Plans Review of Legal Counsel Proposals
The Virginia Redistricting Commission’s Budget and Finance Subcommittee June 25 put in place plans for reviewing the three proposals it received for providing partisan legal counsel for the commission as it goes forward with this year’s redistricting process.
With the scheduled lifting of the Covid-19 state of emergency on June 30, the subcommittee faced a new challenge: trying to schedule another meeting before it would be forced to hold one in person. Consequently, the subcommittee proposed trying to schedule interviews with the prospective firms on the evening of June 29, then holding an executive session that night to review the proposals and try to submit a recommendation to the full commission for approval at its July 6 meeting.
On June 7, the full commission had voted, 10-4, to solicit bids for legal services from firms affiliated with each of the two major political parties. A minority of the commissioners had supported issuing an additional RFP for non-partisan services, but opponents argued that it would be the equivalent of looking for “a unicorn,” and that it would take too much time to determine whether a responding law firm was truly non-partisan.
The RFP for partisan services, however, drew only three proposals, one on the Republican side and two on the Democratic, by the deadline of June 21. One of the Democratic respondents, Crimcard Consulting, said that it had worked for both “partisan and non-partisan decision-makers,” but submitted its response to the Democratic RFP.
The full responses from the firms were posted online before the subcommittee’s meeting and can be viewed here.
On the Democratic side, proposals were submitted by:
- Crimcard Consulting, founded and owned by Kareem Crayton, a political scientist and lawyer who cited experience with redistricting cases and issues in North Carolina, Alabama and California. He said he was the “substantive architect” of The Redistricting Game, and was leading the design team for a new online game to demonstrate the redistricting process called “NextLine,” to be released this fall. Crayton said he was a member of the bar in Alabama, Maryland and the District of Columbia.
- Gerald Hebert, a sole practitioner who represented Democratic members of the Virginia Senate in the post-2010 round of redistricting. Hebert worked as a Justice Department attorney on lawsuits involving the Voting Rights Act before starting his private practice in 1994. He served as executive director and director of litigation for the Campaign Legal Center from 2004 to 2015, and continues to serve as the center’s senior director for voting rights and redistricting. His references included Sen. George Barker, D-Alexandria, one of the commission’s legislative members, and Haskell C. Brown, interim city attorney for Richmond.
On the Republican side, a proposal was submitted by two law firms, Shaerr Jaffee, LLP, which described itself as a “Washington, DC-based litigation boutique” law firm and Taylor English Duma, LLP, an Atlanta-based firm that said it had “vast redistricting experience.” The Washington firm has represented Republican legislators and the Republican National Committee on a range of cases, including some involving abortion rights and the rights of gays and lesbians; most of Taylor English’s cited experience with redistricting has been in Georgia and South Carolina.
All of the firms cited major redistricting cases in which they had participated, at least in connection with filing amicus briefs.
In light of the fact that only one bid was submitted in response to the Republican RFP, Del. Marcus Simon (D-Falls Church) mused whether it would be necessary to do interviews if Republican members of the commission were satisfied with that response. However, he and other subcommittee members raised questions related to the disparity in the fees that had been cited in the proposals for both sides.
Subcommittee Chairman Marvin Gilliam, a Republican from Bristol, asked the DLS staff whether the commission was required to interview respondents. Staff member Brooks Braun replied that it was not required, but could be helpful in defining the scope of services and reviewing differences between the proposals.
Hourly fees for the Republican proposal ranged from a high of $1,100 an hour (which included a 10 percent discount on the firm’s standard fees) for the highest-paid member of the team to $315 an hour for the lowest-paid lawyer affiliated with the Georgia firm. Crayton proposed hourly fees of $425 to $500 an hour, with an estimated monthly fee of $17,000 to $90,000. Hebert proposed a reduced hourly fee for public bodies such as the commission of $375 an hour. He anticipated his services would cost $4,000 a month, or $20,000 for the life of the contract.
In earlier discussions of the commission’s budget, Amigo Wade, director of the Division of Legislative Services, reported that 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. A big factor in budgeting for legal counsel, it was noted, was whether the services involved litigation work, which the commission does not currently anticipate. The commission’s current budget left the line item for legal services open, pending review of the proposals. The law firms were also asked whether they wanted to include any related services, such as racial analysis of districts, in the range of services they could provide
In reviewing the proposed fees, Simon asked, “How many hours can we afford at $1,100 an hour. Do we determine qualifications and then affordability?” Democratic Commission Co-Chair Greta Harris of Richmond then asked, “Is it our intention that if there are different billable rates, will there be parity” between the two sets of counsel?
Sens. Steve Newman (R-Forest) and Barker both responded that such differences could be resolved through competitive negotiations. Newman recommended that after the subcommittee interviewed and discussed the respondents that its recommendation to the full commission be contingent on the completion of “successful competitive negotiations.”
With an eye to the new requirement that the commission achieve a quorum in face-to-face meetings, Newman asked whether it could make a provision for voting by proxy as the Senate has done. DLS lawyer Meg Lamb responded that the Freedom of Information Act rules prohibit proxy voting; because the Senate is permitted to adopt its own rules, it could make that exemption, but the commission cannot. Newman responded that perhaps the General Assembly could address that problem when it met in special session later this summer.
Since it began meeting in January, all of the commission’s meetings have been conducted virtually by Zoom. Commission Co-Chair Harris said that once the emergency order was lifted at the end of the month, “it’s going to be challenging to get everyone together in one place and to meet the intent of the rules under which we are operating.” She said this problem should be put on the agenda of the commission’s next meeting.
The subcommittee agreed to prepare questions in advance for the law firms under consideration, and planned to spend up to 45 minutes interviewing each one.
–Sara Fitzgerald, LWV-Falls Church