Decision on Hiring Legal Counsel “First Real Test” for Commission

The full Virginia Redistricting Commission met virtually on Monday, June 7 to hear reports and act on recommendations from the two subcommittees – Citizen Engagement and Budget and Finance.  

Votes were unanimously in favor (15 – 0) of the Citizen Engagement Subcommittee’s recommendation to hire a Communication and Outreach Coordinator and approve the Request for Proposal (RFP) for that position with allowance for procedural adjustments by DLS staff.  When attention turned, however, to hiring legal counsel, the discussion was much more divided and described by Del. Marcus Simon (D-Falls Church) as the “first real test” of the Commission.

On June 2, the Budget and Finance Subcommittee had voted 5-3 to recommend the commission issue two RFPs to hire legal counsel identified with each of the major political parties.  The debate continued in Monday’s full commission with Democratic citizen members James Abrenio and Brandon Hutchins joining in support of the less partisan approach of hiring a single counsel. Sean Kumar actually attended by Zoom while in Japan with the U.S. Army Reserve. Speaking for the first time on the topic, Abrenio said “It’s hard to understand why it would be difficult to just put out an RFP.  A good attorney can identify issues from left and right.  I would rather have one very good attorney who has a complete understanding rather than two different purely partisan attorneys.  This is a big decision.  Why not investigate?” (For more full debate on hiring counsel, see the June 2 Blog.)

Despite testimony from citizens (see below), those advocating for one nonpartisan counsel did not have enough support to outweigh the ten commission members who were strongly in favor of hiring two counsels – one Democrat and one Republican.  Senator George Barker (D-Fairfax) expressed concern that he “didn’t want to start down a path where there is unease with the attorney if just one.” Republican citizen Richard Harrell added “We are not a nonpartisan commission.  We are bipartisan. If I am to be informed, I need to have the best advice of the best Republican and the best Democrat attorney because they are most likely to give me the best information. (The “client” is the full Commission, not the two parties.)  Republican citizen Jose Feliciano commented for the first time – “The bottom line is simple.  This is a bipartisan commission.  It makes sense to have a lawyer from each.  We will not find the “unicorn.”  (One nonpartisan lawyer capable of fairly representing the full commission.)  “It may make us feel good, but reality is reality.”

In a series of votes (10 – 4), the full commission voted (10 -4) against searching for nonpartisan counsel, choosing instead to issue two RFPs to select one Democratic firm and one Republican firm. Democratic Senators Mamie Locke (D – Hampton) and George Barker voted with the eight Republican commissioners.

Delegate Marcus Simon (D – Falls Church) continued to vote as he had in committee with the three Democratic citizen commissioners – Kumar, Abrenio and Hutchins.  Commission Co-chair Greta Harris had earlier voiced support for an extra RFP for nonpartisan counsel, but she was not able to vote due to having to make a plane flight.  Delegate Delores McQuinn (D-Richmond) was present earlier but not for the votes because she had another meeting to attend.

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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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Citizen Engagement Subcommittee Discusses Public Hearing Schedule and Guidelines for Citizen Input

The Citizen Engagement Subcommittee (Virginia Redistricting Commission) met for the third time on May 26.  

The Commissioners discussed options for public hearings which will be held in July and early August.  Consensus was that each of eight regions (Weldon Cooper map) will have two opportunities to provide input, one in-person hearing and one virtual; one hearing before lines are drawn, and one after. There will be some flexibility in the budget for possible additional hearings and for some of the commissioners to attend more than their scheduled number of hearings.  States such as California and Michigan which have a much larger number of hearings planned are not under the same constraints.

The Commissioners reviewed the guidelines for public input prepared by DLS, and made a few suggestions.  It was generally agreed that in-person hearings would be open to all Virginians, but the virtual hearings would focus on the needs of residents of that region.  People could sign up beforehand, and also at the in-person hearings until 10 minutes after the meeting begins.

A firm schedule of hearings will be considered further at the June 7 meeting of the full commission so that all Commissioners are able to consult their calendars.

DLS staff will continue to revise the proposed guidelines and do further research to answer Commissioners’ questions.

Read on for more details about the Subcommittee’s discussions.

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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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Citizen Engagement Subcommittee Holds First Meeting

The first meeting of the Citizen Engagement Subcommittee was led by Co-chair Richard Harrell on Monday, May 17.  Co-chair James Abrenio and four subcommittee members participated in discussion about public hearings, advertising, accessibility and other outreach and communication needs.  Commission Co-chair Greta Harris also commented occasionally on behalf of herself and Co-chair Mackenzie Babichenko.

A major focus was the importance of public hearings for input from people across the Commonwealth.  While the Constitution and Code of Virginia requires at least 3 public hearings before drawing the maps and 3 after, the subcommittee members felt more were needed.  When Co-chair Abrenio raised the question as to whether they should be virtual or in-person, Sen. Mamie Locke (D-Hampton) suggested they would need to be held geographically across the state and that could determine whether the hearings would be virtual or in-person.  Whichever commissioner is local to a region could attend that meeting.

Discussion then ensued about how many regions would be needed so that commissioners and the pubic don’t have to travel too far.  Amigo Wade, Director of the Division of Legislative Services, suggested using the University of Virginia’s Weldon Cooper Center map which has eight regions.  This map was also used previously by the Redistricting Commission Selection Committee. 

There did not seem to be any expectation by the subcommittee that all commissioners would follow California’s example and attend all meetings.  Instead, attention was given to ensuring a balance for each meeting that would include at least two citizens and two legislators equally divided by party. 

Co-chair Harrell raised other possible complications – the lack of a commissioner from the Shenandoah or Roanoke Valley Region; residents of far Southwest and Southside with a larger geographical spread would have to travel further for in-person meetings; and broadband is not as robust in rural areas. 

It was also noted by Sen. Ryan McDougle (R-Mechanicsville) that once the Census data arrives the timeline for hearings will be very tight.  In response to a question from Sen. Locke, DLS attorney Meg Lamb said that maps are required to be made available to the public virtually on the web site.

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