Decisions on Commission Structure and Operation: Part I

The full Virginia Redistricting Commission met Monday afternoon, August 16 for the first of two meetings to make decisions on the structure and operation of the Commission.  Co-chair Mackenzie Babichenko presided over a packed agenda with debate on critical decisions which would be voted on early Tuesday morning after time overnight to consider the options.  

At the beginning, an exception for one vote was allowed by the Co-chairs when the commissioners appeared to reach consensus on setting the “start date” for the Commission’s work as August 26.  The timeline didn’t allow for further votes, however, as what followed was lengthy discussion of revisions to the “Proposed Redistricting Guidelines and Criteria.” This document was first offered by legal counsel at the August 3 meeting.  Questions were raised about segments relating to “Political Neutrality” and use of incumbent addresses; “Population Equality” including percent deviation; and keeping cities and counties intact under “Communities of Interest.”  Commissioners also considered the issue of hiring map drawers, whether to start with current or blank maps, and how to organize their work through subcommittees.

As the first item on the agenda, citizen commissioner James Abrenio, co-chair of the Public Engagement Subcommittee announced that negotiations had been finalized for Communication and Outreach consultants.   Meeks Consulting is a Virginia Beach public relations and outreach firm owned by Esmel Meeks.  Access Point, a communications and public relations firm, is also based in Virginia Beach and is owned by Michael and Mindy Carlin.  Both came online to greet the Commission and Meeks said his company’s goal overall is to maximize attendance at upcoming meetings and leverage digital and print media to encourage engagement.  Mindy Carlin indicated her areas of focus are to provide data management to help format and organize public comments in a way that can be helpful to Commissioners.  She confirmed that the data platform has the capacity to accept maps from the public who may want to draft their own maps and they will be organizing both public comments that have been received to date and in the future. They will also be providing support for live streaming with opportunities for messaging and ensuring language requirements are met.

Senator George Barker (D – Alexandria) then initiated a discussion of the Commission’s timeline for submission of redistricting maps to the General Assembly.  According to the Constitutional Amendment, the “receipt date” would establish the 45 days for the Commission to submit House and Senate maps and 60 days to submit Congressional maps.  A table prepared by the Division of Legislative Services staff laid out three scenarios for what dates could be considered as the “Date of Census Data Receipt” – August 12 (date of release of data in ”legacy format” from the Census Bureau); or August 26 (date the Commission expects the data to be usable for map drawing after adjustment for the prison population and technical adjustments); or September 30 (date of final release of data from the Census Bureau.)  If August 12, House and Senate maps would be due to the General Assembly by September 26; if August 26, the deadline would be October 10; and if September 30 (the date for full release of Census data), the maps would be due by November 14.

The commissioners questioned whether it would be legally acceptable to consider the date of “receipt of Census data” as when usable data is actually available?  If the “receipt date” could be determined to be August 26, all the data could be formatted including the adjustments for the prison population.  It would also be possible to block out dates going forward with the goal of meeting the body of work before the November election.  “Scheduling dates to block off time for fair maps is challenging.”

P.L. 94-171 provided for Census data to be delivered within one year and all data should have been provided by April 1, 2021.  Because of the pandemic and implementation of the Census, however, the Census was delayed.  “Because the Census has said it is compliant with P.L. 94-171, if we pick another date, the legality could be challenged.”

Meg Lamb of the Division of Legislative Services (DLS) deferred to the “higher paid attorneys to weigh in.”  The four lawyers who were recently hired were present for the first time at a Commission meeting.  Chris Bartolomucci and Bryan Tyson representing the law firm of Schaerr Jaffe and Taylor English (R) suggested “it is a risk tolerance issue.” Most conservative would be August 12, but there is a good argument for August 26 that the Commission hasn’t received the data until the point of it being usable.”  Dr. Kareem Crayton (D) generally agreed and added “the safest route is not to push it until September 30.”

In further discussion by the Commissioners, Delegate Marcus Simon (D – Falls Church) expressed serious concerns about anything that takes us into lame duck territory for approval of maps by the General Assembly.  “Could we give ourselves a shorter date, so we don’t run into the election date?”  Sen. Barker asked whether there is an option to ask the courts to tell us, so we are preemptive? Dr. Crayton (D) said it is possible, but the results may not be satisfactory, and a declarative judgement takes time.  Attorney Chris Bartolomucci (R) agreed, “you might spend two weeks and not even get a decision from a court.  I’m not sure it’s worth it as a practical matter.”

Co-chair Greta Harris said she would “strongly be in favor of August 26.  The data will be available in usable form for the Commission to get it done before the November elections.”  Sen. Steve Newman (R – Forest) added he would even personally prefer to go with September 30.  Citizen commissioner Richard Harrell agreed with Harris and Newman and stressed “We are supposed to be a commonsense group.  I’m a trucker and if you ordered a load from me and I brought it to you in pieces, you don’t have it until it’s put together.  In reality, we’re on firm ground using August 26.  If someone wants to complain, let them complain about it.”  Del. Delores McQuinn (D-Richmond) and Sen. Mamie Locke (D- Hampton) also agreed with August 26 and that September 30 would be pushing it too long to the end of the year.

Citizen commissioner James Abrenio expressed concern, however, about the statute of limitations. He preferred treating August 12 as the receipt date as it is the most conservative.  He asked about the consequence if we have been found to have violated a deadline? “Is there a possibility if we miss certain deadlines the maps could go to the Supreme Court to draw?”  Co-chair Babichenko pointed out that the Constitutional Amendment gives the Commission 14 additional days to submit maps if they fail to meet the initial deadline.  Del. Simon added there would be no fines if they miss the deadline.

Legal counsel, Dr. Crayton (D) reassured the Commission they are on “pretty strong footing to use August 26.  This is generally not an area where judges want to jump in unless they are forced to do so.”

Sen. Barker then brought up what he saw as another significant issue with data availability – the racially polarized voting (RPV) analyst.  “We have to know where we can provide opportunities for racial minority groups.”  Co-chair Mackenzie Babichenko reported that the RPV update will be available August 31.  Legal counsel Kareem Crayton (D) confirmed the analyst, Professor Max Palmer of Boston University, is “moving forward.”

At that point, Co-chair Babichenko took a few minutes to introduce the legal counsel who were attending their first Commission meeting and were already addressing questions about the legality of the starting date. Attorneys Bryan Tyson and Chris Bartolomucci represented the Republican leaning firm of Schaerr Jaffe and Taylor English.  The Democrats perspective is to be provided by Dr. Kareem Crayton of Crimcard Consulting who was in the room and J. Gerald Hebert who attended virtually.

Del. Simon returned to questions about the RPV report – “what will it contain and how will we use it?” Dr. Crayton (D) clarified it will be a presentation of the methods that identify areas of the state where voters are deciding more by race in choosing candidates.  It will indicate polarized electorates where there is a pattern over a series of elections.  Bryan Tyson (R) added it is needed to provide a reason to consider race in the drawing process so it can’t be attacked as a racial gerrymander by the Supreme Court.  Sen. Barker noted “this is not the same in every part of Virginia.  In rural areas you may need 50% African Americans to elect the person of their choice.  In Hampton Roads, a threshold of 40% is possible.”

Following a short break, attention once again focused on considering August 26 as the start of the Commission’s work with Census data.  Legal counsel Bryan Tyson (R) assured citizen commissioner Jose Feliciano that they would have everything needed to draw maps on August 26.  “Some information is relevant but not necessary to begin drawing the maps.”  Sen. Simon questioned whether it was necessary to decide about the start date at that time.  “We can continue to operate as though the start is August 12 but then have a legal argument for granting an extension.  Why not try to even meet the earlier date?”

Co-chair Greta Harris followed the discussion with a motion that the official start date be August 26. “The Commission would work in concert with staff to expedite the body of work to get us  close to the original timeline.” Scheduling dates to block off time for fair maps is challenging.  We can block out dates of time going forward with goal of meeting body of work before the November 21 election.”  Sen. Mamie Locke (D – Hampton) seconded the motion and Sen. Newman supported it – “If we are going to have a true 45 days, this is the only choice.”   Harrell added, “We need to schedule at least three public hearings before submission.  If we keep moving the dates around, it’s not fair to the public.”

Citizen Abrenio suggested there would be no harm in waiting for the vote until Tuesday, but Co-chairs Babichenko and Harris said, “there is enough support for August 26” and “this is the easiest of five critical votes to take.”  The vote was taken, and results were 14-1-1 in favor.  Del Simon was the one “no” vote with citizen Commissioner Sean Kumar abstaining as he “didn’t have the benefit of the earlier part of the meeting.”

“Proposed Redistricting Guidelines and Criteria” –

Co-chair Babichenko then moved to consideration of revisions for the “Proposed Redistricting Guidelines and Criteria.” When it was noted the document was not available to the public and press (or Commissioner Sean Kumar), it was quickly loaded by DLS staff onto the web site.  Attorney Bryan Tyson (R) said the Republican and Democrat counsels addressed the concerns of the commissioners from the August 3 meeting and agreed on all except the highlighted areas. “It is important for the Commission to give clear direction and set priority order to guide decision points,” Dr. Crayton (D) pointed out.  “However, a policy decision is distinct from code requirements and that needs to be clear.”  Gerry Hebert (D) found the use of the “commission guidance” language confusing. 

Co-chair Babichenko asked about “Political Neutrality” in Section 4b.  Commission Guidance:  Maps shall not favor or disfavor any political party.  [The Commission may review political data after the drafting of a plan is complete to ensure compliance with this political neutrality provision and will/will not consider incumbent addresses as part of the drafting process.]  “Should incumbent addresses and voting patterns by precinct be used?  (Voter registration records cannot be used for this purpose in Virginia because voters do not register by party affiliation.) Should we be blind to it, aware of it, or directed not to consider?”

Attorney Bryan Tyson (R) said the maps could be drawn “blind” and the review process then be applied to see how it turned out.  Sen. Barker, however, called for using the political data when drawing the maps.  “We don’t want a map to fail because we have inadvertently unduly favored one party over the other. The legislators on the commission know where most members live.  It would provide where some people know, and others don’t.”  He told the story of how in the past the political party had put three legislators in the same district.  “Don’t do this unintentionally.”

The Commission’s attention then turned to “Section 1.  Population Equality” and how much the population should be allowed to vary in General Assembly districts. (Congressional districts are required to have equal population.) The Virginia Constitution says: “Every electoral district shall be . . . constituted as to give, as nearly as is practicable, representation in proportion to the population of the district.” And the Virginia Code requires: “Districts shall be so constituted as to give, as nearly as is practicable, representation in proportion to the population of the district. A deviation of no more than five percent shall be permitted for state legislative districts.”

Senators Barker and McDougle reminded the Commission that in the 2011 redistricting the Senate used a 2% variation while the House used 1%.  Del. Newman agreed with them that a low threshold is needed but Del. Simon pointed out that the “5% in the statute with language to minimize as far as possible works better than a specific number.” “At the hearings, no one was worried about a specific %.  The public wants cities and communities of interest intact.  This should be a higher priority than numerical specificity.”

It was noted several times that it is important to clarify whether the allowable variation is 5% total or plus or minus 5%, which would permit a total variation of 10%.   Legal counsel pointed out that it may be difficult to reconcile a very tight population variation with other priorities such as keeping cities and counties together. Having a low deviation threshold, however, minimizes opportunities for manipulation using population.

Sen. Barker also pointed out that under “3.  Communities of Interest” addressing political subdivisions (counties and cities) would be a fundamental requirement.  “Lynchburg and Fredericksburg made a compelling case as to why they should be intact, but this should not apply to every case.  Northern Virginia is more of a region and this requirement shouldn’t be imposed.”

Map Drawers –

The commission asked the two legal teams to recommend map drawing consultants who have knowledge of Virginia and are non-partisan, but the lawyers were not able to agree on a single recommendation. The Democrats counsel recommended a GIS (geographic information system) team from the University of Richmond, a group with the necessary technical expertise but no experience specifically with redistricting. The Republican counsel felt that the lack of redistricting experience would make it difficult to meet the tight schedule for producing maps. While the Democrats counsel felt that the technical skills are transferable, the Republican team said that redistricting is an art as well as science, and for the commission to accept a recommendation from the Democrats side without Republican endorsement would give the appearance of partisanship even though the University of Richmond group had no partisan connections. Commissioners will vote on whether to hire the University of Richmond team or two sets of map drawers (one Democrat and one Republican) at tomorrow’s meeting.

Co-chair Babichenko asked “if the Commission should decide not to go with the University of Richmond team, do you have entities in mind that are ready to move forward.”  Bryan Tyson said they have Republican map drawers and Dr. Crayton agreed they could provide map drawers from a Democrats perspective though it would be more costly to have two different map drawers. 

Dels. Simon and McQuinn were pessimistic that “two partisan map drawers would be setting us up for failure.”  Co-chair Harris agreed.  “I voted against two legal counsels and I’m not in favor of having two sets of partisan map drawers given the time we have to work within.” Citizen Kumar added “Neutrality is priceless.”  Del. Simon said he will move tomorrow to hire the University of Richmond map experts as “I haven’t heard from counsel as to why they can’t do the job.”

Sen. Mamie Locke (D-Hampton) then expressed her concern about a “larger problem.”  “I heard “water cooler” discussions toward the end of the recent General Assembly special session that there’s no confidence in the Commission to come up with maps at the end of the day.  Others commented “We won’t need another special session as we won’t have anything to vote on.” 

Co-chair Greta Harris encouraged “I am so proud of my fellow Virginians for voting for the referendum to create this commission.  We knew we would get to a point of difficulty, but the citizens gave us a vote of confidence to try something different. We shouldn’t split the baby constantly along party lines to try to move forward.”  New citizen commissioner Virginia Trost-Thornton was positive.  “The vote I just experienced (14-1-1) showed we can work together and reflected a willingness to come to an agreement.”

Starting With Current or Blank Maps –

Co-chair Babichenko then moved forward to a discussion with legal counsel as to whether starting from current maps, a blank map, or other would leave the Commission legally vulnerable?  All four lawyers had previously recommended the Commission begin with current maps.  Monday, however, Republican attorney Chris Bartolomucci said there is not a great deal of difference between the approaches.  “We have a slight lean toward using existing maps because they are a starting point, so they know where they are and what they do.” He added “there is nothing in the criteria or guidelines in favor of maintaining the existing map lines.”  Democrat attorney Dr. Kareem Crayton agreed and had no big considerations other than practicality.  The second Democrat, Gerry Hebert noted “There is no legal prohibition but one advantage of starting with existing maps is that a number were drawn to comply with the Voting Rights Act and would need to be maintained.  There is also a benefit because it maintains the relationship between constituents and their elected representatives.  In some cases, constituents are satisfied.”

Del. Simon cautioned “Many, many, many members of the public came out in favor of starting with blank maps.  We will have to articulate a really good reason if we start with existing maps.”

Kumar agreed with Simon.  “There is a public desire to start with clean maps.”  Sen. Barker suggested “Don’t restrict ourselves to one approach.”  Co-chair Harris added “as commissioners we have received emails that perhaps there is a midpoint between current and blank.  Suggestions have been for computer generated maps using legal criteria or third-party maps done for 2011 that were quasi-neutral.”

Work Plan –

 The next item on the agenda was the proposal to break into two subcommittees, each of which would draw one set of legislative maps.  This proposal was brought before the Commission at their previous meeting on August 3rd.  The subcommittees would be balanced (Democrat-Republican, citizens-legislators, Senators-Delegates).  Co-chair Harris explained that this plan for two subcommittees would enable the Commission to use the limited time more effectively by working concurrently on two sets of maps: House of Delegates and State Senate.  Babichenko spoke to the Commissioners, asking them to “buy in.  Everyone needs to be comfortable with our selection.”  We need to show our “good faith effort.”  

A lively discussion ensued.  Mr. Kumar thought the balanced subcommittees were acceptable.  He wondered what the roles of the subcommittee members would be in the map-drawing process – would they be directing the map-drawer as to where to draw the lines?  Delegate Simon observed that there has been a lot of talk about this Amendment.  Voters wanted a citizen-led commission.  Voters should choose legislators, not the other way around.   If you start with Senators working on Senate maps and Delegates working on House maps, we will “get closer and closer back to the same old way of doing things.”   Mr. Abrenio agreed that we need balance, and we need to make sure we are doing what we need to do in order to get the public to accept what we are doing.

Senator Newman spoke against the idea of balancing the two subcommittees by assigning 2 Delegates and 2 Senators to each subcommittee.  As he had two weeks ago, he talked about the “seven ways this could fail”.  The only way to meet success is to be able to convince the General Assembly members.  He cautioned against an end product where “it didn’t matter if we landed the plane, as long as we flew it in a certain direction.”  He wondered if the Commission can “get this all the way to the end.”   Senator Barker, who agreed with Newman two weeks ago, said that he would prefer to work on Senate maps, but he would be “happy to work on House districts if that be so.”  He agreed with Delegate Ransone that everyone needs access to what’s being done so we can understand both sets of maps. New citizen Commissioner Ms. Trost-Thornton said she’d be happy to work with either set of maps but wants the input from the entire group of legislators in the process. 

Budget and Meeting Schedule –

Amigo Wade (DLS) reported that $1.6 million has been transferred and is available to the Commission now.  More monies will be released and available by the end of the month.

Regarding scheduling Commission meetings, Wade said DLS did polling and had to work to reach a committed quorum (at least 5 citizens and at least 5 legislators) for each meeting.  They have established a schedule of weekly meetings, including most Mondays in August and September, plus back-to-back days, September 26-27, and two weeks in early October. These nine meeting dates were published on the Commission website a few hours later.

Before moving to the public comment period, Senator Newman requested that the cochairs inform the Commissioners about when votes would be taken at a meeting, saying that “a number of our members have real jobs.”  He then asked how the public could “put something on the record.”  DLS staff Wade and Lamb informed him that the public can submit comments to the email address, or to use the “new participation feature” on the Commission website.  [LWVVA note: (a) emails can be sent to   or (b) the public may use the public comment portal https://www.virginiaredistricting.org/Commenting.aspx ]

Public Comments –

The Chair invited members of the public to come forward for the public comment period.  Two leaders of the NBNRO (National Black Nonpartisan Redistricting Organization) spoke.  Phil Thompson suggested that the Commission consult the Attorney General’s office about whether partisan counsel can represent the Commission in any possible lawsuits.  He agreed with Delegate Simon that if the Commission can’t reach agreement on some issues, “they may as well send it to the Court”.   Mike Futrell, former Delegate from Prince William County, said that while the legislators are tasked with taking commission output and defending it to their parties, he encouraged them to “make the tough decision, make the tough call” and to do what is right.   He admonished them to not look “through a political lens”, but to determine “how is this best for the Commonwealth.”  Both Futrell and Thompson reminded the Commissioners that they are here “for the people”, not the lawyers… not the political parties.

Co-chair Babichenko adjourned the meeting shortly after 4 pm.  The Commission will meet again at 8 am on Tuesday morning.

 

LWV-VA OBSERVER CORPS – 

Chris DeRosa, LWV-ARL

Fran Larkins, LWV-FRA

Peggy Layne, LWV-MC

 

 

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