Redistricting Commission Provides Directions, but Again Deadlocks on Race

The Virginia Redistricting Commission September 15 unanimously approved consensus instructions to its two map drawers on three items for which they had sought guidance, but continued to split along partisan lines regarding directions for creating minority-opportunity districts.

The votes came as the commission’s map makers each prepare their statewide maps of State Senate and House districts. That work is expected to be completed by September 17, giving the commission time to review the maps before its next meeting at 8 a.m. on Monday September 20.  By then, the commission will also have more details about public comments that have been made to date, which, it was told, number in the “thousands.” The comments are now being organized into a data base by the commission’s communications and outreach consultants; as of September 17, commissioners will be able to run reports to review comments directed to a particular issue or region. Those reports will then be made part of the public record. Additional improvements to the commission’s website are scheduled to be made in the coming weeks. The commission is scheduled to start virtual public hearings on its modified proposed maps on October 4.

The commission began its latest meeting by discussing consensus instructions prepared by its partisan counsels on questions related to defining political subdivisions, political neutrality and communities of interest. Ultimately, all three positions were approved with a few small changes, but not before commission members provided perspectives reflecting the differences in the urban and rural communities they represent or where they live.

New language to provide guidance on creating so-called “coalition districts,” was not proposed, it was explained, because the counsels could not reach agreement on their advice. The U.S. Supreme Court has ruled on impermissible “racial gerrymandering,” but has not yet reviewed a case involving coalition districts, where one or more minority groups live close together and support the same candidates, creating a potential majority. Lower circuit courts have split on the issue, but some of those decisions date from the 1990s. Republican commission members, in particular, worried that providing the instructions the Democrats sought would make the commission’s maps more vulnerable to legal challenge.

But Democratic members were not content to simply ignore the issue, and forced another vote. In the end, the practical outcome was the same as it had been two days before.  

Del. Marcus Simon (D-Falls Church) began by noting that that issue had not been brought back for a review, and said, “It seems like we have decided that on the question of giving map drawers guidance on the Voting Rights Act, we are at a hopeless impasse.” Simon asked whether the vote should be revisited. “I don’t want to let it go by. A decision not to decide is a statement.  . . .”

Mackenzie Babichenko, the commission’s Republican co-chair and an assistant country prosecutor, acknowledged that the commission was at an impasse, because “legally, there are two diametrically opposed opinions.”

James Abrenio, a Democratic member who is also a lawyer, agreed with Simon, arguing that the public needed to understand the disagreement. “I think we need to talk about it.” He said he was surprised that the commission was “just moving on from it.”

Babichenko responded that the commission had discussed the issue for two hours at its previous meeting, and that because the U.S. Supreme Court had not rendered a decision, “the law is not settled. Is there anything else to be said?”

Democratic member Sean Kumar, who is also a lawyer, said his review of the Virginia Constitution suggested that such considerations could be taken into account in redistricting. J. Gerald Hebert, one of the Democratic counsels, acknowledged that coalition districts may emerge and are not yet prohibited. He also asserted that “if two minority groups are politically cohesive, and can make a coalition district,” a failure to create that district would violate Section 2 of the Voting Rights Act. But he agreed that the U.S. Supreme Court had not yet ruled on that specific issue.

Hebert added that as minorities’ share of the U.S. population continues to grow more rapidly, “this issue will emerge over and over in this redistricting cycle.” Only the Sixth U.S. Circuit Court, covering Michigan, Kentucky, Ohio, and Tennessee, has rejected efforts to create a coalition district. The U.S. Court for the 4th Circuit, based in Richmond and covering Virginia and four other states, has not considered the issue.

Brian Tyson, one of the Republican counsels, pointed out, “You are going to see a lot of coalition districts on both map drawers’ maps,” based on minority groups choosing to live closer to each other. “If those emerge naturally, that’s great and awesome. The issue for our side is when you say you ‘must do that,” that’s where the problem is.”

Democratic counsel Kareem Crayton noted that the Virginia Constitution seems to support creating coalition districts, and “it would be folly to ignore that.” Abrenio supported instructing the map makers that they “shall, where practicable” look for such districts. (At its last meeting, the commission had rejected a proposal that would have used the word “shall” and a proposal that specified “may.”) “If we’re sued,” Abrenio said, “I’d rather be on the side of protecting the Voting Rights Act and minority rights.” At another point in the debate, he said, “We’re worried about talking about race when we are all thinking about it.” He said he thought race should be considered along with other criteria, and it would then pass a “strict scrutiny” test that has been applied to such cases.

Simon noted that members of the House Democratic Caucus had been concerned that a bi-partisan commission would adopt its own criteria, no matter what language was in the Constitution, and that was why he and other members had opposed the constitutional amendment that created the commission. He noted that in 2020, the General Assembly had adopted enabling legislation, saying that the commission should not “dilute or diminish” the ability of racial and language minorities, “either alone or in coalition with others.” He said that “one reason I am here is to make sure that those things we feared would happen,” don’t  happen. “We put it in [the enabling legislation] and now we are debating it.”

He stressed that the Virginia code and constitution specify the directions that the Democrats supported. “I hope the map drawers are watching,” he said. “I hope they know.” Recalling the metaphor of Sen. Steve Newman (R-Forest) before he resigned from the commission a few weeks ago, Simon said that “in landing the plane”—getting the commission’s maps through the General Assembly—”this will be a big issue for the House Democratic Caucus.”

Several Republican members opposed rehashing the issue. Sen. Bill Stanley (R-Franklin County), who replaced Newman when he resigned, said, “The problem is that we are assuming that where those opportunities [for minority districts] exist, that map drawers aren’t going to do that.” He observed that among the maps that had already been produced, “there were six or seven where there were a majority of minorities. Organically, you have done that.” Stanley said that the maps were in compliance, and the directions were “unnecessary” and “an add-on.” Stanley also noted that he had served as chair of the Senate’s Local Government Committee, where he had experienced “meetings on meetings on meetings” that rehashed issues. He said that the commission had shown a consensus on the issues. . . .We should follow on what these two people have done.”

But the Democrats pressed forward with their motion, which was defeated on a vote of 8-8. (Del. Les Adams (R-Chatham) had had to leave the meeting for a time to attend to a previously scheduled legal matter; the agenda was juggled so he would be back to participate.)

In another, related decision, the commission agreed to authorize the expenditure of up to $50,000 so that data from five statewide primaries in which a person of color had competed could be incorporated into its analysis of Racially Polarized Voting. The primary election results that will be reviewed (in addition to general election results) are the 2018 Republican Senate primary, the 2017 Democratic primary for lieutenant governor, the 2016 Republican presidential primary (which had included Marco Rubio and Ben Carson), the 2013 Democratic primary for lieutenant governor, and the 2013 Democratic primary for attorney general. The counsels agreed that more data is always better, but at some point it might not be cost-effective. An initial review suggested it would not be too costly and time-consuming to incorporate data from the all the legislative races for the past decade. While advisers said that data from Republican primaries is generally less helpful for an analysis of Racially Polarized Voting, the consensus was that with an eye to fairness, pertinent results from both parties’ primaries should be reviewed. Data from the 2020 election was not considered helpful because of the volume of absentee ballots (in some cases, what is described as “early voting.”). Because Virginia does not track such ballots by precinct, the results were thought to not be helpful in analyzing precinct-level trends in voting for purposes of drawing new boundaries.

A rural-urban split was evident early on in the meeting when the commission reviewed language regarding prioritizing political subdivisions. The counsels’ proposed language gave higher priority to counties than to cities, but Democratic members argued that in Virginia, unlike other states, cities are independent of counties and play the same roles that counties do.

Sen. Ryan McDougle (R-Mechanicsville) noted that counties were the original political subdivisions in Virginia, and that cities were created by charters that could be amended.  Stanley  observed that the city of Bedford had chosen to revert to a town in recent years, and the city of Martinsburg was in the process of doing so.

But Democrats argued that many Virginia cities were very large, populous jurisdictions, functioning as counties. Kumar cited the City of Alexandria next to Arlington County, while Sen. Mamie Locke (D-Hampton) observed that her district includes the cities of Hampton, Newport News and Portsmouth.  In the end, the commission amended the draft guidance to give equal priority to preserving the boundaries of counties and cities, where possible, and to give some priority, but a lower one, to preserving the boundaries of towns. It agreed to delete the word “unincorporated” as it applied to towns from the prepared draft.

On the issue of political neutrality, the commission unanimously adopted instructions, telling its map makers not to consider “political data, including election results or incumbent addresses,” while drawing their maps. Once the maps are finished, the commission intends to consider political data to ensure that its maps “achieve political neutrality.” After it was disclosed at an earlier meeting that Democratic map makers had reviewed publicly available political data in doing their first drafts, the map makers were instructed to disclose every district for which they had used such data before receiving their instructions.

Sen. George Barker (D-Fairfax), still smarting ove draft maps that would force him to run against an incumbent Democrat, suggested that because John Morgan, the Republican map maker, lives in Northern Virginia, “he has a pretty good idea where some legislators live and not others.” Republican counsel Bryan Tyson said he believed the map maker had said “he knew generally where [the legislators] lived, but not specific addresses.” Barker said it would be helpful to know which addresses he did know.

Hebert said that incumbent addresses could be an important part of the analysis, noting that Latinx members of the public had already objected that in Arlington County, draft maps would force two Latinx legislators to run against each other.

Stanley chimed in, saying, “My dad used to say, ‘You can’t unring a bell.’” The important thing going forward, he said, was to not use political data and addresses and to acknowledge where it had already been used. That way, he said, “it will not only be transparent, but it will also be fair, and it’s what the people wanted.”

The commission also voted unanimously to accept its counsels’ language to define a “community of interest.” Following the language included in the Virginia Code, it defined the term to mean “a neighborhood of any geographically defined group of people living in an area who share similar social, cultural, and economic interests.” It excluded “a community based upon political affiliation or relationship with a political party, elected official, or candidate for office.” Both counsels agreed that public input could help the commission define such communities.

After Crayton gave as an example an ethnic group that came together to plan a festival celebrating something  such as a lunar new year, McDougle noted that oyster festivals were popular “in my neck of the woods,” and asked whether that would qualify. Crayton replied that it would be up to the commission to decide. McDougle responded that “lots of people talk to me, but I’m not sure who is going to post to Facebook or put in a public comment,” a remark that seemed to suggest concern that rural residents were not actively commenting on the commission’s work. At that point, Christopher Bartolomucci, one of the Republican counsels, explained that the definition of “community of interest” requires a group to be defined geographically and living in an area. “Persons coming from all parts of the state to a rock concert are not a “community of interest.’”

One member of the public, Pete Costigan from Ruckersville in Green County, reflected on the counsels’ earlier memo defining “compactness,” and said different assessments, one based on shape and one based on functionality” did not necessarily “compete,” as the memo had suggested. Costigan also urged that the commission display the location of state roads when it displays its draft maps to help the commissioners and the public review them.

At the end of the three-hour meeting and following the vote on party lines, McDougle turned conciliatory, reminding commission members that “we have had few votes that have not been unanimous. I think it is important that we try to work together. I think we have done a very good job of trying to work through those.”

–Sara Fitzgerald, LWV-Falls Church


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