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.”