Decisions on Commission Structure and Operation: Part II

The early morning meeting of the Virginia Redistricting Commission on Tuesday, August 17 was to make decisions and take votes on aspects of the Commission structure and operations.  One noncontroversial vote had been taken the previous afternoon to establish a “start date” for the Commission’s work as August 26. The majority of the remaining decisions were voted on in a lengthy three-hour session presided over by Co-chair Greta Harris. 

Seven of the day’s motions related to the “Proposed Redistricting Guidelines and Criteria.” The first was to accept a legal counsel recommendation for rewording of the first sentence to “Plans drawn for the Commission must comply with the following guidelines and criteria in order of the priority listed below.” This motion passed 13 – 1 with citizen commissioner Sean Kumar abstaining.  (Due to a work commitment, Kumar was available for only a portion of the meeting and votes.)

The second motion established the population deviation as “Each legislative district should be drawn to be as equal as practicable with total population variances minimized with a target of plus or minus 2% while considering other principles listed below.”  This motion was approved unanimously, 16 – 0.

3.c.i.b. in the guidance document reads “The integrity and priority of existing political subdivisions should be preserved to the extent possible by avoiding unnecessary divisions of those subdivisions.” Several commissioners spoke about hearing Virginians call for putting their communities back together. There was some opposition, but the motion to keep this provision passed 12 – 4.

The section on “Political Neutrality 4.B” was more controversial.  It read “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.]”  A substitute motion that allows incumbent addresses to be considered as part of the drafting process was carried on a vote of 9 – 6.  Another substitute motion by Del. Simon to insert “only” in front of “after the drafting of a plan is complete,” failed 4-11.  Sen. Barker’s motion to strike “after the drafting of a plan is complete carried
11 – 4.  This would allow for consideration of political data in addition to incumbent addresses.

Consideration of the “Proposed Redistricting Guidelines and Criteria” concluded with a motion to accept the entire document as amended.  This motion carried 9 – 5 with Kumar abstaining.

Del. Simon then moved to hire the University of Richmond’s Spatial Analysis Lab as the single map drawer. Despite a lengthy debate, that motion failed on a tie vote 8 – 8.  As a result, Co-chair Harris directed legal counsel to agree on a process of how to move forward with the two partisan map drawers they had previously identified.

The final vote of the day was also controversial.  This was on a motion to accept the proposed subcommittee structure which is balanced with eight commissioners each evenly divided between political parties, House and Senate, and citizens and legislators.  One subcommittee would work on the House map and another on the Senate map.  The motion failed 7 – 8 and all commissioners will now work together on the maps.

Because the time was approaching 11 a.m. and there were concerns about losing a quorum, the question about where to start the maps was put on the agenda for Monday, August 23. The agenda for that date will also include working together to craft a work plan and schedule.

Public Comment –

Liz White of OneVirginia2021: “Based on decisions today, I would encourage that if you hire two map drawers they work in concert on a single set of maps, rather than two sets of maps to be ‘mooshed’ together. I would encourage you to continue to move along a path where all are involved in the map drawing process.  Thank you for your work and your decisions.”

Phil Thompson of the National Black Nonpartisan Redistricting Organization (NBNRO):
“I wasn’t going to speak until the last bit.  You set yourselves up when you hired two sets of counsel.  You put yourselves in this mess!  I took a lot of heat in supporting the amendment. Now there are two different map drawers.  Hurry up so SCoVA can hire their map drawers.  Lots of time and money to be spent.  Sad for the people of Virginia!”

MORE COMPLETE DETAILS ON THE COMMISSION MEETING, MOTIONS, AND VOTES FOLLOW

The “Proposed Redistricting Guidelines and Criteria”  provided the basis for consideration of the first part of the discussion. The new legal counsel – balanced between two Democrat and two Republican leaning firms generally agreed on the document they had drafted and revised.  Areas for which the four legal counsels disagreed were highlighted in yellow.

The first of these was the wording at the end of the first sentence “Plans drawn for the Commission must comply with the following guidelines and criteria in order of the priority listed in the “Commission Guidance” sections below.” 

Dr. Kareem Crayton (D) suggested taking out the “commission guidance” language in this sentence.  “It could be confusing because the law takes precedence over guidance.  Removing that language would make it clearer that the Constitution and law take precedence and the Commission will be making policy decisions.”

Del. Marcus Simon (D-Falls Church) said “if we leave that language in, we need a conversation about the order in which they appear.”  He supported taking out the language, so priorities are not strictly in that order to provide flexibility.

Republican counsel Bryan Tyson commented “everything about redistricting is prioritized.  The population requirement is constitutional and voting rights takes priority as federal law.”  Dr. Crayton (D) advised “Locking in an order of precedence may create problems down the road.  You must deal with constitutional and statutory law; how they work together are hard questions. Since you don’t know when it all will come up, work through it together as they arise.”

After thirty minutes of discussion about the guidance portion of the document and setting priorities, Sen. Steve Newman (R – Forest) suggested “this is so fundamental, if we can’t resolve, let’s go by temporarily.”  Del. Simon withdrew his suggestion and Co-chair Harris said they would “kick the can down the road.”

Later in that meeting, the Commission returned to discussion about the first sentence of the “Guidelines and Criteria.”  Bryan Tyson, Republican counsel, recommended substituting “in order of the priority listed below” for “in order of the priority listed in the “Commission Guidance” sections below.”

Del. Simon and citizen commissioner James Abrenio expressed concern it would be establishing a priority list and Simon’s preference was to separate the guidance. 

Citizen commissioner Richard Harrell pointed out “We must be able to hold two concepts in our mind at the same time.  That’s what intelligent people do, especially lawyers, right?”  Co-chair Harris reminded the commissioners that the co-chairs had worked with counsel earlier on priority order. 

Sen. Newman, seconded by citizen commissioner Virginia Trost-Thornton then made a motion to take counsel’s suggestion for the wording and the motion passed 13 – 1 with Kumar abstaining.

Population Deviation –

Discussion of the redistricting criteria continued as commissioners considered the allowable deviation in population between districts. Virginia code allows a maximum deviation of 5% for General Assembly districts, while federal law requires congressional districts to be of equal population. In response to questions from commissioners, the Virginia code requirement was clarified to be plus or minus 5%, for a total possible variation of 10%. Legal counsel noted that a 10% total deviation has been upheld by the courts if the variation resulted from an effort to address other priorities such as compliance with the Voting Rights Act.

Sen. Barker noted that in the last round of redistricting the Senate districts used a population target of 2% and the House districts used a target of 1%. Legal counsel advised that from a practical standpoint it would be better to state a target rather than an absolute requirement to allow for flexibility to balance competing priorities when drawing district boundaries. Following discussion, the commissioners agreed to revise the language in their guidance document to read that “each legislative district should be drawn to be as equal as practicable with total population variances minimized with a target of plus or minus 2% while considering other principles listed below.” The motion, made by Sen. Barker and seconded by Sen. Newman, was approved unanimously, 16 – 0.

Integrity and priority of existing political subdivisions –

After Co-chair Harris remarked, “we’re making progress!”, the Commission focused on

Section 3.c.i.b of the revised Criteria document about “Communities of Interest.” Discussion centered around the wording of the “Commission Guidance.” 

  1. To maintain the communities of interest in the Commonwealth as required by Virginia law, the

Commission shall consider the following requirements, in order of priority:

(b) The integrity and priority of existing political subdivisions should be preserved to the

extent possible by avoiding unnecessary divisions of those subdivisions.

Sen. Barker expressed concern that giving this priority (vs. Code language) would impact other factors such as compliance with the Voting Rights Act. “It could result in packing African Americans into a district or cancel out the political neutrality issue.” He stated that “Alexandria residents like having three Senators.” He said laws giving this factor (keeping political divisions whole) have not passed in the past.

Sen. Ryan McDougle (R – Mechanicsville) disagreed with Sen. Barker. “That thinking led to my district being an amalgam of precincts in ten different counties. In one county, there is just one precinct in my district; in another county, just two precincts. Citizens never know who represents them and this makes it very difficult. Large jurisdictions will be divided but don’t need to be divided ten ways.”

Citizen commissioner Kumar also took exception to Barker’s statement, saying he has overwhelmingly heard from people asking that we preserve localities.  He also felt there will be a low risk for minority districts as this guidance will come after the requirements of the law.  Sen. Newman agreed with Kumar, citing that most people have asked for their area to be kept together. He described Northern Virginia maps as “spaghetti” which produced no minority representation. Some counties were split up for political expedience, not for voting rights. “This guidance goes directly to what we have heard the most about – put my community back together.”

Del. Simon moved to strike this subsection because “it could have unintended consequences, and is already covered in Virginia Code.” Sen. McDougle offered a substitute motion to keep this section. Neither motion was seconded. Kumar asked if the legal teams had any objections to this section. The response was “there is no dissension from any legal firm.” Barker objected and said that he talked to Democratic counsel Gerry Hebert who disagreed with this section. Democratic counsel Crayton responded that was a surprise to him.

Republican counsel Chris Bartolomucci advised this section is “not a straightjacket, just guidance.  It could be revisited.”  Sen. Newman then seconded Sen. McDougle’s substitute motion to keep 3.c.i.b. and it passed on 12-4 vote.  The “No” votes were from Senators Barker and Mamie Locke (D-Hampton), and Delegates Delores McQuinn (D-Richmond) and Simon.

Political Neutrality –

Next the Commission discussed Section 4.b. on “political neutrality”.  Some wording in this section was highlighted by the attorneys to indicate they did not come to an agreement on language contained in the brackets below:

4.b. 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.]

Democratic counsel Crayton suggested that the Commission should decide whether they want to include a statement on political neutrality. He tasked the Commission to decide whether (1) to include incumbent addresses, and (2) to consider past political election data. Republican counsel Tyson agreed, and further asked the Commission to decide when to consider such information before, during, or after drawing maps.

Kumar made a motion, seconded by James Abrenio, to process the maps without political data for initial map drawing, and then consider that data afterward.  Kumar explained that will give us an opportunity to ensure that political neutrality has been done.  Del. Simon wanted to try Kumar’s approach and to remove suspicion, try the maps without rigging from the beginning.”

Sen. Newman offered a substitute motion to replace “will” with “may” (“may consider incumbent addresses”) after agreeing with Barker that they need “to have as much information up front.” Barker further said that, without this information, the maps will not pass the General Assembly, and they do not have time to “correct maps at the last minute.” Del. Les Adams (R-Chatham) seconded.

Sen. Newman asked for clarification about Kumar’s motion, but Kumar “had to drop off for a little bit.”

Harrell agreed with Sen. Newman’s substitute motion, saying that we must bring political information “in the front end” of the process. I don’t see how we’ll get to the point of solving all these issues if we don’t have this information as we go along.” Abrenio pushed back, reminding the Commissioners that “Virginians passed the Amendment, and that this action would defeat the purpose of the Amendment. We should at least try to keep politics out of it. Let the public see what we change and why. If the maps are approved by this Commission and the public, and it fails in the General Assembly, there may be political consequences.” He stated, “This option to use political data is a “recipe for disaster.”

Co-chair Harris called for a vote on the substitute motion: “to change “will/will not” to “may” consider incumbent addresses as part of the drafting process. Sen. Newman’s substitute motion carried on a vote of 9 – 6.  (The substitute motion passed so the original motion by Kumar was discarded.)

Voting YES: Babichenko, Feliciano, Harrell, Trost-Thornton, Adams, Barker, McDougle, Newman. Ransone. Voting NO: Abrenio, Hutchins, Harris, McQuinn, Simon, Locke. Not voting: Kumar.

Sen. Newman then asked, “what does upper part now mean? Is after the drafting of a plan is complete” offset by other items?” Attorney Bryan Tyson (R) responded “this is an excellent question.  As amended, the Commission can clearly consider incumbent addresses.  The limitation on other political data is after the drafting is complete.”  Tyson added “This is your decision re political neutrality.  There is no strong consideration legally.”  Dr. Crayton (D) added “in complying with the Voting Rights Act, you will see political data. This is also a decision about what you want the public to do in public testimony.”    Attorney Chris Bartolomucci (R) said this is a policy call for the commission.  “You could draw maps blind to political data and assume it produces the right result or consider as you go along.”

Sen. Barker made the motion to strike “after drafting of a plan is complete.”  Sen. Newman seconded the motion.  “In 45 days you can’t get there if you draw and undo.”

Del. Simon made a substitute motion to insert “only” in front of “after drafting of a plan is complete.”

”The goal is to get a politically neutral map to start and not undo it.”  This substitute motion was seconded by citizen commissioner Brandon Hutchins. 

Citizen commissioners Harrell and Virginia Trost-Thornton spoke out against the substitute.  “The goal is to get to a certain point, but we have to be practical. There’s no other way to get this accomplished in 45 days other than Sen. Barker’s proposal.”  Trost-Thornton “would like the information because I want to know I’m doing the correct thing and would like all the information up front.  It otherwise goes in the face of logic to be quite honest.”

Sen. McDougle questioned that it doesn’t require us to look at the data but says we can continue to have that discussion.  Attorney Bartolomucci (R) confirmed “the operative word is “may” rather than “shall.”

Del. Simon’s substitute motion to insert “only” after the drafting of a plan is complete failed 4 – 11.

Voting YES:  Abrenio, Hutchins, Simon, and Harris.  Voting NO: Feliciano, Trost-Thornton, Harrell, Adams, Newman, Ransone, McDougle, Barker, Locke, McQuinn, and Babichenko.

The Commission then took up Sen. Barker’s motion to strike “after the drafting of a plan is complete” which carried 11 – 4.  Voting YES:  Feliciano, Trost-Thornton, Harrell, Adams, Newman, Ransone, McDougle, Barker, Locke, McQuinn, and Babichenko.  Voting NO:  Abrenio, Hutchins, Simon, and Harris.

Co-chair Harris then asked legal counsel to revise the document one more time and Sen. Newman called for a vote for or against the entire document.  He made the motion to agree to the document as amended which was seconded by citizen commissioner Feliciano.

Del. Simon noted “it is generally a good document, but I will vote “No” because there were too many close votes and I have some concerns with the way it’s laid out.”  Abrenio, Hutchins, McQuinn, and Harris joined him in voting “No.”  It carried, however, 9 – 5 with Kumar abstaining.

Map Drawers –

After a five-minute break, the commissioners gathered again to consider map drawers.

The Commission had previously asked the two legal teams to recommend a non-partisan map drawing consultant familiar with Virginia to support their work.  The lawyers, however, were unable to agree on a recommendation.

Democratic counsel Crayton put forward a group from the University of Richmond Spatial Analysis Lab, which had been recommended by the Weldon Cooper Center at the University of Virginia. Their response to questions provided to the Commission indicate the team has expertise in geographical information systems and have completed a variety of mapping projects in Virginia but have never worked on redistricting.   Bryan Tyson, speaking for the Republican lawyers, did not support the recommendation, saying that they were concerned about the team’s ability to come up to speed and meet the tight timeline required given their lack of redistricting experience. They also had some questions on whether they would be perceived as partisan, but “our major concern is their ability to do the work in the time required.”

Del. Simon liked the idea of working with an academic team and the University of Richmond team could be apolitical.  “Hiring folks for their partisan lean would be problematic.”  He moved to hire the University of Richmond as the map drawer. (Seconded by Del. McQuinn.)

Sen. McDougle objected: “I don’t necessarily have the comfort level with the nonpartisan nature of an academic institution that some of the members of the commission do. If we have two groups and they agree then we are good; the commission is to make the decision when they disagree.”  Sen. Newman concurred, “Dual lawyers have worked well on the criteria.  I’d hate to see us now take an individual recommended by only one side.  If people don’t like going to two, we could do it ourselves.” 

Del. Simon understood the concern but responded, “We will all benefit from giving our direction to one set of map drawers.” Citizen commissioner Kumar pointed out “We would be better served from a time perspective with the University of Richmond rather than two different sets of map drawers. Citizens don’t have the experience either to draw the maps themselves and the influence of elected officials would create a worse perception problem.”

Citizen commissioner Harrell countered “We don’t have “on the job training. My firm hauled dangerous chemicals all over the world.  If a load were to go out today, I wouldn’t stick someone who has just driven a truck because he or she has to be trained.”  He added, “The plan was to pick one if counsel agree; if we hire one counsel’s recommendation that goes against our process.”  

When citizen commissioner Feliciano asked, “If we hire two map drawers, are they going to work together to create one set of maps?”, Dr. Crayton (D) responded, “That’s up to you as a commission.  I’ve never seen it work this way.  Depends on how you decide to proceed.”

Co-chair Harris called for a vote but there was a brief delay when Del. Simon asked that Del. McQuinn be in the room before the vote.  Upon McQuinn’s return, the motion to hire the University of Richmond GIS team was defeated along party lines.  Voting YES:  Abrenio, Hutchins, Kumar, Barker, Locke, Simon, Harris, McQuinn.  Voting NO:  Feliciano, Thornton, Harrell, Adams, McDougle, Newman, Ransone, Babichenko.  (A tie vote fails.)

Co-chair Harris then asked the two legal teams to each recommend a map drawer, noting “The process is not unfolding the way many citizens had hoped. We will do the best we can within the constraints. We’ll need to decide how to proceed, and we have made our lives more complicated.”

Several commissioners expressed concerns about the failure of the vote and asked if there were any other options.  McQuinn regretted “There’s been an outcry from the community for an unbiased, impartial approach to map drawing.  I may be totally wrong and not a great visionary, but I’m hoping there’s another way to find an entity that could represent all of us.”  Kumar asked counsel if they had considered out of state firms.  “We know Virginia and they will have our guidance.  Having two sets of map drawers is a big mistake.”

Co-chair Harris asked, “Could you go back to the well one more time to find one entity you could both agree on, or have you exhausted the possibilities?”  Bryan Tyson (R) said “We were pretty extensive.  It wouldn’t be fruitful to try again.”  Dr. Crayton (D) “If we go back to the well, we will need clarity on what it means to have political concerns as we don’t understand objections to the University of Richmond on political grounds.”

Co-chair Harris concluded, “I am disappointed, my perspective only, as it is not what the citizens voted for in referendum.”  She then directed counsel to agree on a process of how to move forward with the map drawers they have identified.

Proposed Subcommittee Structure –

Co-chair Harris then asked for a motion to accept the proposed subcommittee structure, which is balanced with eight commissioners each evenly divided between political parties, House and Senate, and citizens and legislators.   One subcommittee would work on the House map and one on the Senate map.  (They would both work together on the Congressional maps which are due later in the process.)

NOTE:  From the August 3 full Commission meeting, the proposal was for the House Districts Subcommittee to include Sen. Newman and Sen. Barker, Del. Margaret Ransone, Del. Delores McQuinn, and citizens Virginia Trost-Thornton, Jose Feliciano, Sean Kumar, and Co-chair Harris.  The Senate maps would be drafted by a subcommittee composed of Sen. Ryan McDougle, Sen. Mamie Locke, Del. Les Adams, Del. Simon, and citizens Harrell, James Abrenio, Brandon Hutchins, and co-chair Babichenko.

Co-chair Babichenko made the motion to accept the proposal and citizen commissioner Abrenio seconded it. There followed strong objections from several of the legislators.  Sen. Newman – “this is a mistake.  We need to look for a way to ultimately land the plane.  The Constitutional amendment requires the agreement of six of eight citizen commissioners, three of four House commissioners, and three of four Senate commissioners. The best way to get there is to have House members work on House maps and Senate members work on Senate maps.”

Co-chair Harris pointed out that there are Senators on the Senate map subcommittee.  Newman continued in opposition, “We don’t wind up with the number of Senators needed.”  A preferable way would be to have all members work on all maps.

Del. McQuinn supported the subcommittee proposal.  “Senators Locke and McDougle should be able to handle any concerns.  Diverse subcommittees are the best approach, and all information will come back to the full committee.”

Sen. McDougle’s perspective was that “having individuals from each of the silos is a good idea but I have heard what Sens. Barker and Newman suggested – that ultimately we do have to get the votes.”  He then suggested tweaking the list slightly to add remaining members to the House and Senate subcommittees.

Sen. Newman would agree to going halfway, but “adding Sen. Barker to the Senate group would cure my strongest opposition.”

Del. Simon questioned, “If we were to do that, what does it do to the balance of the subcommittees?” Co-chair Harris confirmed it would make for an imbalance with six legislators and four citizens.  Del. Simon pointed out the Commission was designed to deadlock and how do we avoid that? “I support the original proposal from the co-chairs.”

Citizen commissioner Abrenio pointed out that “citizens are learning on the job and the proposed makeup does the best to address his and the public’s concern which is to limit maps being drawn by elected officials.  Feliciano countered “the perception that legislators are picking their voters is not true.” Trost-Thornton said she would learn from the expertise of legislators.

Co-chair Babichenko clarified “the whole point wasn’t to exclude members.  It was to divide up the work and manage getting it done. All decision points would come to the full committee.” 

McDougle asked if neither of the two options were chosen, whether the entire commission would have to work together.  Citizen commissioner Harrell said “the devil is in the details.  The first vote is three of four Senators, and three of four Delegates have to agree.  It is easier if we use their expertise, and it doesn’t mean they are picking their own districts.”

The motion by Babichenko, seconded by Abrenio, to have two subcommittees equally divided between political parties, House and Senate, and citizens and legislators failed seven to eight.  Voting YES: Abrenio, Hutchins, Locke, McQuinn, Simon, Babichenko, Harris.  Voting NO:  Barker, Feliciano, Thornton, Harrell, Adams, McDougle, Newman, Ransone.  (Kumar wasn’t present for the vote.)

Del. Simon then raised objections to Sen. McDougle’s proposal that there be four citizens and six legislators on each subcommittee.  Simon said he would just not have subcommittees if they were in such a disproportionate number.  Sen. McDougle then offered to withdraw his motion if the outcome would be to work as an entire group.

Co-chair Harris pointed out “this imbalance is not in the spirit of what we’re working for.”  She remarked, “Hope everyone likes being in Richmond!” 

LWV-VA OBSERVER CORPS –

Chris DeRosa, LWV-ARL

Fran Larkins, LWV-FRA

Peggy Layne, LWV-MC

 

 

 

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