Subcommittee Recommends Issuing RFPs for Partisan Counsels

The Virginia Redistricting Commission’s Budget and Finance Subcommittee voted, 5-3, June 2 to recommend that the commission issue two Requests for Proposals to hire legal counsel identified with each of the major political parties. The vote marked the first official division among commission members, and a divide, not only between the two parties, but also within the blocs of citizen and legislator members.

The motion was supported by the subcommittee’s two Republican legislative members, its two Republican citizen members, and Sen. George Barker (D-Alexandria). The vote came after a substitute motion, which would have recommended issuing an RFP for neutral or non-partisan counsel at the same time, was defeated by the same margin. The subcommittee’s two Democratic citizen members were joined by Del. Marcus Simon (D-Falls Church) in supporting that approach.

Sen. Stephen Newman (R-Forrest) continued to argue strongly in support of hiring two sets of partisan-affiliated counsel, and that the subcommittee should make a firm recommendation to the full commission. “I strongly believe you can’t do this with one counsel. . . , “ Newman said.  “I’m very concerned about having to bet on a single-interest group, because you’re going to have to understand where they stand. I’m very much in favor of a bipartisan approach: I think it comes with two counsels.” Newman’s motion in support of partisan counsel was seconded by Mackenzie Babichenko, the citizen who serves as the commission’s Republican co-chair.  

Barker said he supported seeking partisan counsels as “the wise course of action” that would “make sure everybody feels comfortable with the type of information they have been given.” Barker said he did not anticipate that the counsels would argue with each other, but rather that they would be able to explain different sides of an issue. Del. Margaret Ransone (R-Kinsale) said she agreed with Barker’s comments. “I look at this as a way for me to learn ways to defend our work. I want to understand both sides.”

Sean Kumar, the subcommittee’s Democratic co-chair, and Greta Harris, Democratic co-chair of the full commission, continued to argue in support of hiring a single counsel. Kumar noted that the RFP said the commission was seeking advice on interpreting the laws governing redistricting. “I don’t understand why it has to be partisan if you are giving advice on the law,” he said. Kumar again argued that it was a waste of taxpayer money to hire two counsels and that if the legislative caucuses wanted partisan advice, they should be the ones to pay for it. Kumar also contended that it was “short-sighted” to make a decision before the commission determined whether there were law firms or legal scholars who could provide neutral or non-partisan advice.

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Budget and Finance Subcommittee to Set Extra Meeting on Draft RFPs

The Virginia Redistricting Commission’s Budget and Finance Subcommittee decided May 27 to schedule another meeting at the beginning of June to give it more time to review the language of several draft Requests for Proposal for legal services.

Sean Kumar, the subcommittee’s Democratic co-chair, praised the “rock star team” at the Division of Legislative Services for the work it has been doing to support the commission. But subcommittee members received three new draft RFPs right before the start of their meeting, and some wanted more time to review them. Sen. Stephen Newman (R-Forest) said that some would want to do a “deep dive” into the RFP language before the subcommittee provided a recommendation to the full commission at its June 7 meeting. (The subcommittee anticipated  scheduling a meeting on June 1 or 2,  possibly in the evening this time.)

The new draft RFPs would seek to identify lawyers that could make the case that they could provide non-partisan support to the commission, as well as firms that traditionally work for Democrats or Republicans. At previous meetings, legislative members had said that finding a non-partisan firm would amount to finding a “unicorn.” DLS staff member Brooks Braun, who prepared the drafts, said the commission could decide to send out more than one RFP. The draft RFPs start on page 8 of this document.  Braun added that if commissioners had a vision of how they would work with partisan counsel, that could be included in the RFP. DLS staff said the RFP would be placed on its website and on the state’s regular procurement website, but that copies could also be sent to lawyers who might be interested in doing the work or who had represented the legislative caucuses in the past.

Kumar continued to express his concern about the optics and expense of hiring two partisan counsels. In response to his questions, it was explained that in the last two redistricting cycles, the legislative caucuses had paid for hiring their legal support. Kumar questioned whether the commission could, in fact, hire counsel representing the political parties. Braun explained that the language of the procurement would make clear that a law firm worked for the commission as a whole, even if was chosen on the basis of its partisan affiliations.

Before the end of the meeting, Newman observed, “The commission will have a vote, and we’re used to winning and losing, and we’ll see where we end up. But ultimately, there is going to be a vote.” Kumar said he agreed.

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Subcommittee Approves Two-Pronged Approach on Legal Services

The Virginia Redistricting Commission’s Budget and Finance Subcommittee voted, 8-0, May 25 to prepare two sets of RFPs for legal counsel, one that would anticipate hiring lawyers who had done work for each of the political parties and one seeking to hire non-partisan counsel that would represent the commission as a whole.

A discussion of legal representation again consumed most of the subcommittee’s second meeting as it worked on preparing a budget for the full commission to approve at its June 7 meeting. Legislators, particularly Sens. George Barker (D-Fairfax) and Stephen Newman (R-Forest), continued to argue that it would be difficult to identify non-partisan lawyers, that using partisan lawyers would help ensure that the General Assembly would eventually approve the commission’s proposed maps, and that, in Newman’s words, the task of identifying a non-partisan counsel would “double” the amount of interviewing work the commission would have to do. But the subcommittee’s Democratic citizen members continued to push back at those arguments.

After Division of Legislative Services staff members said they could adapt a draft RFP to pursue both options, the subcommittee voted to recommend that approach to the full commission.

At the start of the meeting, DLS Director Amigo Wade reported back on what his staff had been able to find out related to the costs of legal services procured by the General Assembly’s caucuses in the last two redistricting cycles; Wade said that so far, DLS had only received figures from the Democratic side of the aisle. In 2001, he reported, the House and Senate Democratic caucuses had contracted with the same law firm for services that were capped at $250,000, a figure that had anticipated support for litigation. Wade noted that the fees included help with map drawing and monitoring the U.S. Department of Justice’s “pre-clearance” process under the Voting Rights Act, a hurdle that no longer exists. Wade said the caucuses spent about $100,000 in that cycle. 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.

Barker noted that in 2001, before he was elected to the Senate, the Democrats had anticipated that they would challenge the maps, and that they did, but unsuccessfully. Barker said the lawyers had helped the caucus review the maps for criteria such as the compactness of the districts and their racial make-up.

Newman recalled that when the Republicans were not in the majority, “we were going to vote no” on maps the other side proposed. In 2001, he recalled, the party had relied primarily on the DLS staff, not outsiders for its legal support. Wade agreed that in that cycle, the DLS staff had put proposed maps into “the system” and then reviewed whether it was “an appropriate district.”

Wade said he had not yet gotten a ruling from the Attorney General’s Office on what services, if any, it could provide to support the commission. At the subcommittee’s previous meeting, Barker had said the office had told him it could not provide any legal support to the commission, as is the case in some states with independent commissions.

Del. Marcus Simon (D-Falls Church), who is going through his first redistricting cycle, observed, “In the old system, the caucus planned to draw maps as best as it could, and the party out of power would try and sue. . . . That was the way we did redistricting in the past. I hope this will be a much improved process. The goal of all of us is to produce a map that no one will be eager to sue us out of the gate.” Simon said that based on the full commission’s discussion the day before, he had been imagining commission members working at drawing maps together with a lawyer sitting with them if they needed advice. “Is that the vision of how we would use the lawyers” he asked. “Do they give advice upfront or review what we have done?”

The commission’s Democratic Co-chair Greta Harris, who had tried her hand at mastering the commission’s map-drawing software last week, said she hoped that legal counsel “would give us guidance around our core priorities.” She said she still hoped that the commission could hire a single counsel and that it sounded “stressful” to have two lawyers giving advice, and “the answer is to ‘put it down the middle.’” Harris said “there is a higher calling for all of us to find one counsel” who could help the commission stay within “the spirit of the law.”

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Virginia Redistricting Commission Launches New Website

The Virginia Redistricting Commission launched a new website May 24 with an easier-to-remember URL and a mechanism through which citizens can provide their e-mail addresses to receive regular communications from the commission.

At a meeting of the full commission, Amigo Wade, director of the Division of Legislative Services, said that visitors to the commission’s old web address, nested within the DLS’s web pages, would now be redirected to www.virginiaredistricting.org. Democratic Co-chair Greta Harris, who was presiding at the meeting, responded, “I love that. It makes it much easier to find our body of work.”

The co-chairs of the commission’s subcommittees reported on their recent meetings, but did not call on the full commission to resolve any issues that arose during their deliberations. James Abrenio, the Democratic co-chair of the Citizen Engagement Subcommittee, said his subcommittee would be reviewing guidelines that the Michigan Redistricting Commission developed for public input at its meetings, but no mention was made of their discussion of the Michigan commission’s portal, which makes use of tools to sort, categorize and display comments and community of interest maps developed by members of the public

Abrenio reported that the subcommittee had discussed clarifying the deadline for posting written comments to the commission before a meeting. (The deadline for requesting to speak at a full commission meeting is 10 a.m. the day before.) Written comments sent to the commission by at least three individual members of the League of Women Voters of Virginia in the days before the most recent meeting were not posted before the start of the meeting.

Richard Harrell, the subcommittee’s Republican co-chair, detailed the $250,000 the Citizen Engagement Subcommittee had voted to request for its outreach, noting that it represented only 12 percent of the commission’s overall budget. Harrell said the subcommittee envisioned holding four in-person public hearings before the Census data was received, and four more after the maps were initially drawn but before they were submitted to the General Assembly. It was anticipated that four commissioners would attend each hearing, but that each commissioner would only have to attend two of the eight sessions, one before and one after the maps were drawn. The commission anticipates an equal mix of party representatives and citizen and legislators at each hearing, with members able to attend the sessions closest to their homes. Wade said DLS would soon share a proposed schedule of the hearings, which would likely start in July.

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Citizen Engagement Subcommittee Recommends Outreach Budget

The Virginia Redistricting Commission’s Citizen Engagement Subcommittee voted May 20 to recommend that the commission spend a minimum of $250,000 on public hearings and advertising to engage with Virginia citizens on the 2021 redistricting process.

The subcommittee reviewed budget figures suggested by the Division of Legislative Services staff as a starting point, before reaching consensus on some adjustments.

Members of the DLS reviewed (The figures are provided at the end of the document posted here. ) Director Amigo Wade said that the staff had estimated that  the eight public hearings the subcommittee had proposed would cost roughly $13,448 each for a total of $107,584. He said the estimate was based on the costs of facility rental and court reporters to prepare transcriptions, broadcasting capabilities, and per diems and expenses for four commission members to attend each hearing, along with two DLS staff members. Wade noted that DLS has been absorbing the costs of virtual hearings so far. He added that he had looked at the experience of members of the Martin Luther King Memorial Commission, and said he generally budgets “at the upper range.”

Del. Delores McQuinn (D-Richmond) mused whether money could be saved by making use of the facilities of faith communities, libraries, and pubic universities. “This is the people’s business we are doing, so we should at least ask,” she said. Wade said that the staff had reviewed earlier public hearings that were held in conference spaces that could hold 200 to 300 persons. He said that his estimates had included the cost of engaging American Sign Language interpreters and a security presence. He said DLS could explore the kind of options McQuinn suggested,  but that they might not be available in every region. McQuinn noted that many of the facilities now have better technology for broadcasting meetings than they did before the Covid-19 pandemic.

James Abrenio, the Democratic citizen member who co-chaired the subcommittee meeting, referenced comments provided by Erin Corbett, redistricting coordinator for the Virginia Civic Engagement Table, and encouraged the public to reach out to the commission if they had ideas for places where hearings could be held. “If we use less money for this,” he said,” we can put the money to something else.”

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More About the Michigan Commission’s Website

Michigan’s new independent redistricting commission has held its first public hearing and implemented a new website to solicit and organize the public comments its receives. 

At a May 17 webinar sponsored by OneVirginia2021 and the League of Women Voters of Virginia, Moon Duchin, a Tufts University mathematics professor whose MGGG Redistricting Lab designed the website, noted that within the first week, the Michigan website had received between 120 and 150 public comments. In the webinar Duchin demonstrated how interested citizens could post written testimony the way they would make public comments, and could also draw a map of their “community of interest” and explain their map to those who would be drawing the maps. Duchin added that her group’s approach was simply “one possible way” to encourage useful public comment. Duchin spoke with two other speakers, Chris De Rosa, co-chair of the League’s Redistricting Committee, and Nancy Wang, executive director of Voters, Not Politicians, which led the campaign to create the Michigan commission. Duchin’s presentation begins at about 20:00 in the video.

At the May 19 meeting of the Virginia Redistricting Commission’s Budget and Finance Subcomittee, Commission Co-Chair Mackenzie Babichenko said she had seen the presentation and thought the website was a “good way to solicit input.” It seemed, she said,  “organized, direct, and efficient.” 

Duchin noted that in the 2010 redistricting cycle, the state of Utah, for example, solicited and received 300 valid redistricting plans for the legislature to consider. This year, she said, redistricting commissions might receive thousands, and added, there is “such a thing as too much data” if it becomes overwhelming. Duchin said her group and others have been working to address the problem of “translating the kind of things people say when they come before a microphone,” and putting it in the form of “visualizable and actionable data that can be put in front of line drawers.” 

The Virginia commission’s Citizen Engagement and Budget and Finance Subcommittees will be holding additional meetings over the next two weeks to make recommendations to the full commission on the approaches the approaches that should be taken.

–Sara Fitzgerald, LWV-Falls Church

 

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Subcommittee Wrestles with Legal Services Needs and Mapping Role

The Virginia Redistricting Commission’s Budget and Finance Subcommittee began its consideration of a budget for the new commission on May 19, and quickly decided it needed to make some fundamental decisions before it could proceed very far.

The subcommittee discussed a work plan proposed by the staff of the Division of Legislative Services. But it soon began debating two key issues: who would do the work of drawing the new districts and how many lawyers the commission would need?

Subcommittee members began by considering how much it should budget for legal support. At the commission’s last meeting, the DLS staff reviewed what other state redistricting commissions had spent on legal support, but noted that those costs had varied greatly, depending on whether the commission itself was sued or whether the state attorney general’s staff could provide legal support to a commission.

Democratic Del. Marcus Simon and Republican Sen. Stephen Newman said they wanted to clarify how much legal support DLS would be able to provide. Both said they felt it would be hard to find a law firm with redistricting expertise that was not associated with one of the two political parties, and said it might be like searching for “a unicorn.”  Newman said he was pretty sure that “unicorn” didn’t exist.

Brooks Braun of DLS said it was unclear whether the commission or the General Assembly would be subject to a lawsuit if the maps were challenged. He said that DLS “knows Virginia redistricting law,” but that the new criteria embodied in the constitutional amendment had not been challenged in court yet, and that DLS did not have as much expertise as others in interpreting the requirements of the federal Voting Rights Act.  

Democratic Sen. George Barker said the commission had discussed having two sets of general counsel, one for each party. “I think that is the way to do it.” Barker suggested that having lawyers affiliated with both parties would ensure that nobody’s interests were ignored. He said he did not anticipate that the commission would face litigation, and that the commission had been careful to follow Freedom of Information Act rules. As for the Voting Rights Act, he said, “I think the attorneys we hire would be able to advise on that.”

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Redistricting Commission Steps Up Pace of Work on Key Decisions

The Virginia Redistricting Commission stepped up the pace of its work at its May 10 meeting, setting a more aggressive schedule of subcommittee meetings in the month of May to make key decisions regarding its budget and procurements and  plans for managing citizen outreach and  public input.

Under the new timetable, the commission’s Citizen Engagement Subcommittee will meet first, on Monday May 17 at 2 p.m., to help provide guidance to the Budget and Finance Subcommittee, which will hold its first meeting on Wednesday May 19 at 2 p.m. The Citizen Engagement Subcommittee scheduled additional meetings on May 20 at 10 a.m. and Wednesday May 26 at 10 a.m. Budget and Finance plans additional meetings on Tuesday May 25 at 10 a.m. and Thursday May 27 at 10 a.m. The full commission still plans to meet on Monday May 24 at 10 a.m., when it is scheduled to receive a presentation on the 2020 census.

Like the commission, the subcommittees are co-chaired by citizen members and evenly divided between parties, between citizens and legislators and between members of the chambers of the General Assembly.  Meetings will all be open to the public and other commissioners, but only subcommittee members can vote on recommendations to the full commission.

The subcommittees’ deliberations will likely be guided by an overview the commissioners received at their latest meeting by Brooks Braun, a Division of Legislative Services member, who analyzed the budget and operations of the country’s 11 citizen-led redistricting commissions. Braun said that DLS hoped to “provide you with some context so you’re not groping in the dark.” The materials Braun prepared and assembled were posted at the meeting and have been added to the Materials document available here. 

Braun noted that Virginia’s commission was the only one with both legislator and citizen members. Of the states with citizen-led commissions, he noted that Virginia was “probably most like Colorado, Michigan and Washington,” in terms of size, and might be closest demographically to Washington in terms of its diversity  and its mix of industries.

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League Co-Sponsors “Deep Dive” Into Redistricting on May 12

The League of Women Voters is joining with other redistricting reform advocacy groups in sponsoring a virtual “Redistricting Deep Dive” on Wednesday May 12, beginning at 10 a.m.

Liz White, executive director of One Virginia 2021, one of the event’s co-sponsors, invited members of the Virginia Redistricting Commission at their May 10 meeting to tune into the webinar to build on the redistricting training they have already received. White said the event’s sponsors had “assembled a lot of the top minds” in the United States on redistricting, including former members of California’s independent redistricting commission.

The webinar is free and open to the public, and will be recorded for future viewing. Click here to register. 

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Follow-Up to LWV’s (Virtual) Day of Action on Redistricting

The League of Women Voters of Virginia had a good turnout for its (Virtual) Day of Action on Redistricting on April 29. 

If you missed the webinar–or would like to see it again–you can view it here.

Here is a list of key links that was shared during the presentation.

Here is a copy of the slides that were used during the presentation. 

For more information about how the League of Women Voters of the U.S. is advocating for redistricting reform, click here. 

If you would like to contact the League of Women Voters of Virginia about scheduling a program about redistricting or arrange for a training session on some of the redistricting map-drawing tools, click here. 

–Sara Fitzgerald, LWV-Falls Church

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