Expedited Schedule and Additional Plaintiffs for Lawsuit

On Monday, June 13, a federal judge agreed to an expedited schedule for the Jeff Thomas lawsuit and ordered the parties to make their initial filings by early July.  Judge David J. Novak also criticized both the Herring and Miyares Attorney Generals offices for delays.  A Virginia Mercury article quoted Judge Novak, “Had the state not bogged down the case, the legal issues could’ve been resolved last fall.”

Then on Thursday, June 16, WRIC ABC8News reported that the Rev. Michelle C. Thomas, current president of the Loudoun County NAACP, and former chapter president Phillip Thompson had joined the Jeff Thomas lawsuit as plaintiffs.   

Unlike the previous Goldman case, “the plaintiffs in the new lawsuit are voters living in some of the most overpopulated districts and argue that their votes in 2021 were weakened compared to voters in the least populous district.

The amended lawsuit alleges the state’s decision to hold elections under the old districts violated the Equal Protection Clause of the Fourteenth Amendment and the Voting Rights Act because the plaintiffs and other similarly-situated residents were underrepresented. It calls for for primary elections to be held on or before Sept. 13, 2022, and to hold the state House elections on Nov. 8, 2022, when the congressional midterms will be held.”

 

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Goldman Lawsuit Dismissed

A panel of three federal judges has dismissed the Goldman lawsuit seeking new House of Delegates elections this year.  The lawsuit filed by Democratic lawyer Paul Goldman in June 2021 claimed the 2021 House elections were unconstitutional because they were held on old district lines that hadn’t been updated to reflect 202 U.S. Census data. 

U.S. District Judge David Novak, U.S. Circuit Judge Stephanie D. Thacker and Senior U.S. District Judge Raymond A. Jackson ruled June 6 in a 31-page opinion that Paul Goldman lacked standing to pursue the lawsuit because he couldn’t show his particular rights had been violated either as a voter or a candidate. 

According to reporter Graham Moomaw in a “Virginia Mercury” article,  “the opinion seems to acknowledge the possibility another party could step in to try to pick up the fight where Goldman failed.  While other groups have shown interest in Goldman’s legal battle, it took nearly a year for the court to rule on the basic question of whether Goldman had standing to sue, raising doubts about whether a new lawsuit could be filed and heard in time to conduct new elections this fall.  If no other legal challenges or appeals emerge, the House would be up for election again on new maps in 2023.”

 

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SCoVA Posts Draft Maps and Invitation to Hearings

On December 8, the Supreme Court of Virginia (SCoVA) announced that the proposed maps prepared by the Court’s Special Masters Sean P. Trende and Bernard N. Grofman have been posted on the Court’s public website. The press release also encouraged the public to comment on the draft maps at public hearings which will be held virtually on December 15 and 17.

The three draft redistricting maps include a single map for the Virginia House of Delegates, a single map for the Senate of Virginia, and a single map for Virginia’s representatives to the United States House of Representatives. There are PDF versions and “interactive” versions which allow users to comment directly on the maps. The Special Masters’ written report which accompanied the maps indicated they “have worked together to develop any plan” and the maps “reflect a true join effort on our part.” 

Their 53-page report further described their approach. “We carefully drew districts that met constitutional and statutory population requirements.  In doing so, we minimized county and city splits, while respecting natural boundaries and communities of interest (“COIs”) to the extent possible.  We attempted to draw compact districts, although equal population requirements and Virginia’s geography often conspired to limit our ability to do so.” 

The report provides more specific details on their methodology and choices for location of Congressional, State Senate and House districts. They instituted “nesting” by carving Senate districts out of the U.S. House districts and then drew the House of Delegates districts out of Senate districts.  “Overlapping jurisdictions helps ensure communities of interest that underlay the House of Delegates districts have multiple layers of representation.” 

In addition, their report explained –

  • “The Statutory Criteria make no mention of protecting incumbents. We therefore maintained ignorance about the residences of incumbents.” They plan on “maintaining that ignorance . . . unless otherwise instructed by the Court.”
  • To avoid possible scrutiny and questions from the Supreme Court of the U.S., they drew districts without race as the predominant interest. They believe they have provided “maps that do at least as well or better as the current map in terms of creating districts where the minority community has a realistic opportunity to elect a candidate of choice.”
  • They carefully reviewed the communities of interest submitted by Virginia’s residents to the Virginia Redistricting Commission. They also reviewed data from Representable, a nonprofit organization that allows individuals to draw their communities of interest and attempted to incorporate COIs where ever possible. They broadened the definition of COI to include “shared broadcast and print media, transport infrastructure and institutions such as schools and churches” which were part of a U.S. Supreme Court list. They also were “mindful of the Blue Ridge Mountains as an important geographic divider in Virginia’ history.” They acknowledged there may be other communities of interest of which they’re not aware and “look forward to receiving the commentary of this Court and of the public to help improve the map in this regard.”
  • They felt by adhering to the statutory criteria, “We minimize the risk of any undue favoritism toward either party. It would be difficult to draw gerrymanders under these constraints had we wanted to.”  Once the maps were drawn, they examined the political data in their totality using several different measures. “No single measure is perfect but all we have examined lead to similar conclusions that the maps we drew were neutrally drawn.”  A footnote referred to the legal judgement as to whether any map satisfies the constitutional requirement not to “unduly favor or disfavor any political party” as one that must be made by SCoVA.
  • They opted to retain the traditional numbering of the districts to facilitate public comment, but left open the possibility of renumbering the districts in a sensible manner.

In the December 8 press release, the Court also announced that two virtual public hearings will be held December 15 and 17 from 1 – 4 p.m. to receive public comment on the proposed plans. 

No in-person public hearings are scheduled, but members of the public, including elected officials, are invited to attend the virtual hearings and provide live comments virtually.  There will be an option just to view the hearings, but in order to offer public comment, participants must notify the Clerk of Court by sending an email at least 24 hours in advance to and indicating which of the dates they prefer. Further detailed instructions are on the press release and members of the public will be emailed instructions on what to expect and how to participate. The email should include the requestor’s name and email address, and where they reside in the Commonwealth.

The Court also encouraged the public to continue to submit written comments to and to comment on the maps proposed by the Special Masters directly on the interactive maps on the Court’s website. Written comments must be submitted by 1 p.m. on December 20, 2021 in order to be reviewed by the Court or its Special Masters.

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SCoVA Rejects 1 Republican Nominee for Special Master, Seeks More Names

The judges of the Supreme Court of Virginia (SCOVA)  told the Republican leadership of the General Assembly to submit the names of three more nominees to serve as a Republican special master to redraw the state’s districts after rejecting one nominee and raising “concerns” about the other two.  In its  order issued  Friday, November 12, the court told party leaders to submit at least three new names by Monday November 15. The court also instructed Democratic leaders to submit at least one additional name after one of their nominees had expressed a reservation about the requirement that the “two Special Masters shall work together to develop any plan to submit to be submitted to the Court.”
 
The Order also further addressed the role and requirements for Special Masters.  “Although the Special Master candidates are to be nominated by legislative leaders of a particular political party, the nominees will serve as officers of the Court in a quasi-judicial capacity.  Consequently, the Special Masters must be neutral and must not act as advocates or representatives of any political party. Before being appointed, the Special Masters must warrant that they have no ‘conflicts of interest,’ Code 30-399(F), that precludes them from prudently exercising independent judgement, dispassionately follow the Court’s instructions, and objectively applying the governing decision-making criteria.”
 
In addition, the Order stated that “The Special Masters appointed by this Court will not be permitted to consult with any political parties, partisan organizations, outside experts, or any other person or entity except for their personal support staff and individuals specifically authorized by this Court.”
 
The actions by the court were in response to letters from the General Assembly’s Democratic leadership, Senate Majority Leader Dick  Saslaw,  (November 8) and House Speaker Eileen Filler-Corn (November 10), who sought disqualification of all three of the Republican nominees.  Republican leaders had submitted their response on November 10, 2021.
 
The court’s order specifically disqualified Thomas Bryan, a statistician who had been paid a $20,000 consulting fee by the Virginia Senate Republican Caucus in September. The order said Bryan had disclosed the arrangement during the selection process, and the court concluded that it represented a conflict. The court also expressed concerns about the other two GOP nominees, Adam Kinkaid, executive director of the National Republican Redistricting Trust, and Adam Foltz, who has done redistricting work for Republicans in other states. The court did not disclose which of the Democratic nominees had expressed reservations about serving. 
 
 

 

 

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C1 Congressional District Map and Partisan Fairness

The Virginia Redistricting Commission met Monday, October 18 but, without a quorum present, no business could be conducted, or votes taken. The meeting instead began with comments, many negative, from fifteen citizens who were concerned about the impact on their communities of the Commission’s C1 map.

The commissioners then took advantage of the “down time” to be outspoken about their views.  Their “no holds barred” comments included strong criticism of the other party’s intentions.  They began with Del. Marcus Simon’s (D-Falls Church) accusations that the Republican maps may have been “actually drawn by the National Republican Redistricting Trust (NRRT).  Sen. Bill Stanley (R-Chatham) then criticized Del. Simon for making an “accusation like collusion” just because two out of eleven districts are identical.  Sen. Stanley suggested he could “make the accusation that this Delegate (Simon) was put on this Commission to ‘blow it up’ since he was opposed to this Commission.” When the charged atmosphere ebbed, Del. Margaret Ransone (R-Kinsale) expressed hope that “we get the train back on the tracks.”

After Del. Ransone’s call to start talking about maps, the discussion turned to how to adjust for partisan fairness. Both counsels agreed the U.S. Supreme Court will not hear cases on partisan gerrymandering and there is no Virginia case law to guide the Commission.  They presented their analyses of Commission map C1 with Democrat Dr. Kareem Crayton calculating that C1 includes five Republican districts, five Democratic, and one leaning Democratic. Crayton also said, “we should hopefully all be able to agree that when a majority of the people of Virginia express a preference for a political party, the map should at least reflect a majority of seats for that party.” He also presented a report from the National Conference of State Legislators (NCSL) on criteria for partisan fairness in other states. 

The Republican lawyers had prepared a memorandum which was available to the commissioners shortly before their meeting. Counsels Chris Bartolomucci and Bryan Tyson gave their opinion that map C1, if adopted, would not violate Virginia statute because Virginia Code does not expressly demand “proportional representation” – awarding the two major political parties a number of congressional districts proportional to their share of the vote in statewide elections.

Sen. Ryan McDougle (R-Mechanicsville) pointed out, “When we come back on Wednesday, we will have to come to consensus on what the language means as we go through the other criteria.” In response to a question about how to direct the map drawers to resolve some of the citizen comments about map C1, Del. Simon suggested “nothing stops us from sending an email to the co-chairs and staff asking for things for the next meeting.”

This next meeting of the Commission will be Wednesday, October 20 at 8 a.m.  There is also a virtual public hearing scheduled for Friday, October 22, but a decision on whether to move ahead with that hearing will be decided Wednesday when there is a quorum.

 

PUBLIC COMMENTS AND MORE COMPLETE DETAILS ON THE COMMISSION MEETING FOLLOW –

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No consensus on maps . . . Citizen comment extremely important!

The Virginia Redistricting Commission returned Saturday, October 2 for one final opportunity to put together “something” for the public to comment on at the hearings which are to begin Monday.  Presiding Co-chair Mackenzie Babichenko stressed it will be extremely important for the public to comment.  By lunchtime, it was apparent that reaching consensus on one map each for the House and Senate was a “bar too high.” Babichenko cautioned, “because we agree on pieces does not mean the entire map is consensus.  These are working maps and they don’t represent a consensus. 

As the commissioners reviewed House maps A6 and B6, complaints continued about the difficulty in comparing statistics because some districts cross “regions”.  This was resolved after lunch with an analysis prepared by the Division of Legislative Services (DLS).    

There was also differing advice from the Democratic and Republican lawyers on requirements for using “opportunity districts” to ensure African Americans are able to elect candidates of their choice.  Sen. Mamie Locke (D-Hampton), speaking for the benefits of “opportunity districts”, warned that packing can dilute African American voting strength. “We don’t have to put a bunch of black folks in a district to get that opportunity.”  Co-chair Greta Harris saw independent analysis of political fairness and racial representation as a way to move forward.  She also implored citizens as they commented next week to “look to their better angels” and “consider what is good for other citizens that have been historically disenfranchised in our political system.”

Concerns were raised as to whether map drawers had included all the proposed changes so far from the Commission. Several commissioners complained about increased split jurisdictions in the newest maps. Map drawers acknowledged an attempt to eliminate pairings but weren’t sure how far to go because of public backlash.  There were questions as to why neither attempted to take into account Sen. Barker’s recommended Richmond map that could have yielded another majority-minority district.  Sen. Ryan McDougle (R-Mechanicsville) also said the map drawers didn’t explore other changes in the Hampton Roads area for bringing districts together.  “It’s frustrating that we’re not seeing our directions on their maps.”

The possibility of heightened partisanship by the map drawers was considered.  Co-chair Babichenko strongly reminded map drawers and counsel that they are asked not to advocate for particular maps. “Now is the time for us to make decisions.”  The division between the map drawers was also evident several times as the Democratic counsel asked that Republican map drawers stick to a discussion of their own maps.

There was lengthy debate on how many maps the Commission should post for public comments; whether to use a coin toss to decide which specific maps to use; and whether to include any changes from the map drawers through the end of that day.   Del. Delores McQuinn (D-Richmond) was thanked by her fellow commissioners for introducing some optimism in the proceedings with a personal story of repeated attempts to bake a cake – and her eventual success.  

While it was hoped the final draft Commission maps would be posted by 5 p.m., Division of Legislative Services (DLS) attorney Meg Lamb expressed concerns about the agency’s ability to respond that quickly.  The result was that the Senate maps were posted as A5 and B4 and House maps as A7 and B6.  Two of the maps were dated October 2 and two were posted in the early morning hours of October 3.  The Commission website would also include links to maps submitted by the public.

MORE COMPLETE DETAILS ON THE COMMISSION MEETING FOLLOW –

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Searching for Best Way Forward!

With eight virtual public hearings scheduled to start Monday, October 4th, the Virginia Redistricting Commission met Friday, October 1st,  amid concerns expressed by presiding co-chair Greta Harris that they are “literally running out of time.”  The day’s goal was to finish maps for the Hampton Roads and Eastern regions and proceed to Central, West Central, Valley and Northern Virginia.  Progress was hampered, however, by technical issues and a substitute map drawer who was not totally up-to-speed on the progress so far. There was also time-consuming debate about how to move forward after review of each regional map.  With each party justifying their preferred versions, questions were also raised about the number of maps to put forward and what would be most helpful to the public.  

Major attention at Friday’s meeting was given to determining the number of “majority-minority districts”, as well as “coalition” and “opportunity districts” in Hampton Roads and the Central region which includes Richmond.  These were areas determined by Dr. Maxwell Palmer to have racially polarized voting (RPV).   There was considerable confusion, particularly for the Hampton Roads area as to which districts were in the “footprint” for each region, so the figures were difficult to compare. 

There was also division on whether data from the 2017 Lt. Governor Justin Fairfax election could be used to determine performance of the district or suggest “packing.”

The Commission is now returning on Saturday to complete three remaining areas. They will start at 9 a.m. and go as long as needed to finish up the maps in time for the public to review at the hearings.  

MORE COMPLETE DETAILS ON THE COMMISSION MEETING FOLLOW –

Revised A5 (Republican) and B5 (Democrat) maps had been loaded overnight Thursday by the Division of Legislative Services (DLS) and the commissioners did not have an opportunity to look at any changes before the meeting began at 8 a.m. Friday. For the first hour, the new maps were shown only on the big screen and not on their individual laptops which made it difficult to view.  A further wrinkle was that Republican map drawer John Morgan was not available and an alternative team member, Kent Stigall substituted for him.  Stigall had a few hours to review the maps but was at a disadvantage and not able to answer Commissioner questions as quickly about the new proposed map.  

Beginning with the Democrats B5 map, map drawer Ken Strasma said they had tried to work with the Republican version and made a number of changes in their B4 map in response to comments and debate, focusing on population and competitiveness.  Some districts were redrawn with an eye toward compactness.  They specifically tried to see if they could lower  the % deviation to create more opportunity in surrounding districts.  

While both map drawers referred to the two Hampton Roads maps as “substantially similar,” the Democratic counsel, Dr. Kareem Crayton expressed “grave concerns” about a pattern of “packing” in several districts. He used data from the 2017 election of African American Lt. Governor Justin Fairfax to suggest some districts were overpopulated.  Republican counsel Bryan Tyson, however, warned, “It is dangerous to use the Voting Rights Act to enforce political outcomes.  The question is whether you could have created another district?  The population is barely on the edge.  I don’t see a packing issue here.” 

The commissioners continued to frequently ask about the election results for these districts with the 2017 election of African American Lt. Governor Justin Fairfax used as an example.  Further questions were also asked about what percent creates “packing.”  Sen. Mamie Locke (D-Falls Church) Locke asked about the basis for the challenge in the Bethune-Hill court case. Republican counsel Bryan Tyson said, “It is important to remember that in the Section 2 case, it was a two-step process.  Did you include too many African Americans and then the special master reduced it.  At that point, the districts were below 50%.”  

Sen. Mamie Locke (D-Hampton) mentioned she considers Hampton Roads to be Tidewater and the Peninsula. She would like to maximize “opportunity districts” as much as possible.  “We’re getting there.  Sen. Barker has pointed out that Suffolk and Franklin are part of the Hampton Roads planning district and should be considered part of Hampton Roads.  I’m not totally unhappy with what I’ve seen so far.”   Citizen commissioner James Abrenio of Fairfax asked, “Sounds like we’re on the same page about creating another “effective opportunity district.”  Why are we not moving forward with this?”

When DLS attorney Meg Lamb asked for instructions on whether to move ahead with the Republican (A5) or Democrat (B5) map as the base for the Hampton Roads region, there was a lengthy debate on the best way to move forward. Del. Marcus Simon (D-Falls Church began by saying he hadn’t heard any objections to the B team (Democrat) map so “let’s adopt that approach and move on up the coast.”  Co-chair Harris (Democrat) agreed, “Since there was accommodation for the Republican map on Wednesday, let’s take the Dems version today.”  Sen. McDougle objected, saying in order to move the ball forward, they should take the Strasma plan (B5) for south Hampton Roads and use the A5 version for the Peninsula.  “Split the baby.  It’s up to us to do it.”  Read more

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Commission Reviews State House Maps for Three Regions

The Virginia Redistricting Commission began its detailed review of draft maps for the House of Delegates on September 29, but after four hours of discussion, was able to consider only three of the regions it had planned to review. The commission will meet again on Friday, October 1 at 8 a.m., and has scheduled its first weekend meeting at 9 a.m. on Saturday October 2.

The agendas have not yet been posted, but the October 1 meeting is likely to focus on House maps beyond the three areas it reviewed on September 29, namely the Southwest, Southside and Hampton Roads regions. Previously, the commission had expected to review a revised map for Senate maps on Saturday. While a Sunday meeting has not been formally announced yet, that prospect was referenced during the meeting.

With eight virtual public hearings scheduled to start on Monday October 4, the Division of Legislative Services staff was asked what the commission was required to decide before the mandated hearings begin. DLS attorney Meg Lamb said there was “no legal prohibition” on putting forth alternatives, but said the staff “would encourage a draft that is close to complete. I think there would be a concern about multiple versions going forward.” Republican counsel Bryan Tyson echoed that point, suggesting that once the differing versions are “schmushed together,” it will be harder to make major changes.

The commissioners started their consideration with the Southwest region, working eastward across the state to Southside and then Hampton Roads. Once again debate over the southeast corner of the state centered on issues related to redistricting minority communities. Legislative commissioners were still reluctant to take formal votes, while others suggested map drawers needed more guidance. Near the end of the meeting, several Democratic members suggested there was a consensus to support the map the Republican map drawer had produced for District 77 in Southside, and to meld the Hampton Roads districts drawn by the Democratic map drawer, which seemed to create more districts where the non-white population was more than 40 percent, if still short of a majority. But Republican Co-chair Mackenzie Babichenko cut that discussion off to permit time for public comment before the meeting had to end. Only one of three virtual commenters who had signed up then appeared.

As the commission worked through the maps, members demonstrated the importance of geographic diversity on the commission as members contributed their personal knowledge of different parts of the state. Democratic commissioners Greta Harris and James Abrenio shared that they had lived in the southwest part of the state when they were children, and Republican Commissioner Richard Harrell, a retired trucking executive, drew on his knowledge of trucking routes through the Blue Ridge mountains.

Map drawers had been asked to try to avoid “incumbent pairings,” that is, when incumbents are pitted against each other, in their latest iterations. But commission members quickly focused on a boundary that separated two incumbents in Washington County, rather than keeping the county intact. Harris and Democratic commissioner Sean Kumar expressed concern that too much emphasis had been placed on unpairing incumbents at the expense of criteria they considered more important.

At previous meetings, legislative members had argued that the commission would eventually have to review incumbent addresses and pairings for purposes of determining whether their maps disadvantaged a political party. Del. Marcus Simon (D-Falls Church) noted that because of declines in population, the Southwest was likely to lose a seat in the House of Delegates. Sen. Ryan McDougle (R-Mechanicsville) said he didn’t disagree with Kumar’s concerns, but that he wanted those concerns “to be remembered when we go to Northern Virginia and Hampton Roads. We need to be consistent. . . .”

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