This year’s redistricting process promises to play out like a page-turning mystery novel.
Already one of the dirtiest games in politics with state lawmakers seeking to carve out districts favorable for themselves and their parties, this once-a-decade procedure is bound to have plenty of suspenseful twists and turns. For one thing, Gov. Bob McDonnell plans to form a bipartisan advisory commission on redistricting, a first for Virginia. “We only do this every 10 years,” says McDonnell. “I think it’s important to have citizen input to help hold the government accountable and ensure that the requirements of the statute and of the constitution are upheld, that it’s fair, that it respects the contiguity of land masses, the community of interests…and obviously to reduce gerrymandering.”
Ultimately, though, McDonnell has veto power over the General Assembly-drawn lines for the state legislature and congressional districts. It may take awhile for those to reach his desk, however. A split legislature, with Republican control of the House of Delegates and Democratic control of the Senate, will oversee Virginia’s redistricting process for the first time since Reconstruction. Plus, Virginia has the shortest timetable in the country to solve the redistricting puzzle with state legislative elections scheduled for November. No matter how the lines are drawn, redistricting plans typically end up in court.
Why is it so important to get redistricting right? Because a bad outcome can result in legislative stalemate on key issues that require action if Virginia is to remain one of the country’s most competitive states.
Election-year politics can often define a General Assembly session, but redistricting will make this year remarkably different. As lawmakers draft their legislation and vote on key issues, they may find it more advantageous to impress their fellow legislators than constituents that may be drawn out of their district.
The results of redistricting could have far-reaching effects on Virginia government during the next 10 years. Districts created as havens for one party often favor the most partisan candidates. This can lead to aggravating gridlock at the state level. “In a culture that’s becoming more hyper-partisan all the time, the impact of gerrymandering could mean virtual deadlock on key issues facing the commonwealth like transportation, job creation or enhancing the ability for us to draw quality workers to the state,” says Doug Smith, executive director of the Virginia Interfaith Center. The center is a key leader in the Virginia Redistricting Coalition, a group of businesses, individuals and civic groups that advocate for a nonpartisan redistricting process in Virginia.
Gerrymandered districts often mean that primaries are more competitive than the general elections. It also creates a disenfranchised electorate, says Olga Hernandez, president of the Virginia League of Women Voters, another member of the coalition. “When people feel their votes don’t matter, you get a depressed turnout,” she says. “Only the most partisan and fervent supporters of the party are the ones who vote. The vast middle basically gives up, and so you get more polarization because only the ardent party supporters are the ones who go out there and vote.”
The coalition wants redistricting power to lie in the hands of an independent, bipartisan commission. The group backed legislative efforts led by Democratic state Sen. Creigh Deeds to create such a commission, which passed the Senate unanimously but died multiple times in a House of Delegates subcommittee. The coalition criticized McDonnell for remaining silent on the bill last year after supporting a bipartisan process during his campaign.
Del. Mark Cole, R-Spotsylvania, chairman of the Privileges & Elections Committee in the House of Delegates, defends the legislature’s control of the process. “I think there’s a question of accountability and transparency with an unelected commission,” he says.
At press time, details of McDonnell’s advisory commission were not finalized. It is unclear how much influence it would have in the process. How obliged would lawmakers feel to follow commission-drawn boundaries?
The state may also get some guidance from university students. Christopher Newport University and the Public Mapping Project, an advocacy group that supports transparency in the electoral process through sophisticated software, are holding a Virginia College and University Legislative Redistricting Competition this spring.
Students will compete to redraw nonpartisan legislative and congressional districts based on the U.S. Census population estimates. The contest requires students to apply constitutional and congressional laws regarding redistricting, but not use the incumbent’s address or voting history to create the districts. “The contest will provide us with a visual of what could be,” says Hernandez. “Sometimes people have to see what could be before they realize how bad [gerrymandering] is.”
A rush to finish the puzzle
But in the end, legislators will still have the initial drafting pen. And they won’t have much time to redraw Virginia’s 140 state legislative districts. Virginia is one of only four states (the others are Louisiana, Mississippi and New Jersey) that hold elections in 2011.
The U.S. Census Bureau has said it will release its population figures to Virginia first (as early as February) because of the state’s timetable. As soon as the General Assembly adjourns its regular session, which is scheduled for the end of February, it likely will call a special session and then recess. The Privileges & Elections committees in the House and Senate will hold hearings around the state after receiving the Census figures.
“During that time we’ll review all of the proposals people are sending us,” says state Sen. Janet Howell, D-Fairfax, the chairwoman of the Senate Privileges & Elections Committee. “And we expect to get hundreds of proposals to come in.”
The constitution requires that created districts be virtually equal in population and that all consist of contiguous and compact territory and comply with the Voting Rights Act of 1965.
The process faces many hurdles along the way.
First, creating the new lines won’t be easy. Virginia has seen a major shift in population from rural communities to its urban suburbs. The growth of metropolitan areas contributed to 93.5 percent of Virginia’s growth in the past decade. That will likely mean a pickup of seats in Northern Virginia, but a loss in Southern and Southwest Virginia. “You have a game of musical chairs because you’re taking away a seat,” says Michael McDonald, a national redistricting expert and associate professor at George Mason University. “When the music ends and someone has to sit down, there’s one less seat.”
For example, some of Virginia’s largest population growth has occurred in Loudoun and Prince William counties. The current district of state Sen. Mark Herring, D-Loudoun, is estimated to have at least 105,000 more people than the “ideal” Senate district using 2009 population estimates. Meanwhile, three Senate districts in urban areas of Hampton Roads (Virginia Beach, Hampton and Chesapeake) and the district representing counties in South-McDonald western corner of Virginia are 20,000 people below the ideal target.
But while increased representation could boost Northern Virginia’s voice in the state legislature, it won’t necessarily make delegates in that region happy. Slight boundary shifts in a highly populated area can create major changes in the electorate. “We will probably have fairly dramatic boundary changes,” Howell says of the shifts in Northern Virginia. “You can’t add two seats to a geographically small area without having every district impacted … there will be winners and there will be losers, and I don’t expect anybody to be totally happy, including me.”
After the committees draw up the complex districts, legislators must return to Richmond to approve them. The Senate and House will draw up their own districts, and Howell believes each will approve the other’s plans. But Cole, chairman of the House Privileges & Elections Committee, says no such deal has been reached. Either way, McDonnell, a Republican, has ultimate veto power.
In states with split control in the legislature, the two houses typically grant tacit approval of each other’s plan, says McDonald, the GMU professor. Ten years ago, six of the seven states with divided legislatures operated this way. “The two chambers log roll and vote for each other’s maps, and the governor usually approves it because it’s part of a bipartisan compromise,” says McDonald. “Of course, there are always situations where the deal has broken down.”
And even once agreement is found among the General Assembly members and the governor, the plans must undergo a 60-day review by the U.S. Justice Department because of Virginia’s history of racial discrimination. The department must determine whether the lines are in accordance with the Voting Rights Act of 1965. But court rulings haven’t been definitive on how much race can be used in drawing districts. Past court rulings have determined that race can be used to draw districts in which a majority of residents are minorities, but race cannot be the predominate factor. Districts also must be compact and contiguous. Virginia’s 3rd Congressional District has been successfully challenged in federal court in the past, forcing the state to lower the number of minorities living in one district.
There’s always the possibility that the divided legislature leaves Virginia in a lurch, unable to compromise on new district lines. That would mean a federal court would have the ultimate responsibility for redistricting.
The reapportionment of Virginia’s 11 congressional districts could be the process that most likely ends up in court. The General Assembly has the power to draw these lines as well, which means that the lines must be agreed on by a split legislature. That leaves Republicans with the upper hand because of McDonnell’s veto power. “Why would Democrats cut a bipartisan deal if they only get three out of 11 seats?” asks McDonald, the GMU professor. After the 2010 elections, Republicans hold eight of the state’s 11 congressional seats. “In Virginia, there’s going to be a lot of pressure for Democrats to say, ‘Let’s roll the dice with the courts.’”
It’s unlikely the redistricting process will be smooth and easy. But even if the process goes better than expected, it will be virtually impossible to hold party primaries in June. Instead, they will likely be held in late summer or early fall. That schedule will make the election year confusing for many candidates. It could be many months before they know who their voters are and in which district they will be competing.
The situation has left the state political parties in a guessing game as they prepare for the 2011 elections. “We have to work from a best-guess basis, and we’ve been working here to compile a list of races where we can make gains and best put our resources,” says Garren Shipley, communications director for the Republican Party of Virginia. “We have to do our best with 95 percent planning based on what it looks like will happen.”
Brian Coy, communications director for the Democratic Party of Virginia, agrees. “Candidates are making tentative plans and laying the groundwork for campaigns, but until the lines are formerly drawn and certified, it’s difficult to move forward formally with a campaign.”
A historical perspective
The likelihood of legal challenges could make elections especially complex. Redistricting typically is challenged in messy court battles. Redistricting in 2001, when Republicans held solid majorities in both houses, was no different. In early 2002, a circuit court judge in Salem ruled that the new House of Delegates and Senate districts were unconstitutional because they diluted minority voting power by packing minorities into too few districts. He ruled that once the lines were redrawn, another election would need to be held.
The ruling sent Virginia politicians into a frenzy. Delegates had just been elected four months earlier. The governor and attorney general at the time, Democrat Mark Warner and Republican Jerry Kilgore, respectively, were at odds over whether to appeal the decision. Kilgore did appeal, while Warner filed papers with the Virginia Supreme Court encouraging it to uphold the lower court’s decision.
In the meantime, a few Republican operatives, including Ed Matricardi, then executive director of the Republican Party, were accused of eavesdropping on a call by Democrats discussing the redistricting case. Matricardi was eventually convicted of a felony for illegal wiretapping.
Ultimately, the Virginia Supreme Court ruled the original lines were in fact constitutional. But that decision did not occur until November, leaving lawmakers in limbo for much of the year. In the 1991 redistricting, when both houses were controlled by Democrats, both the Senate and House of Delegates districts were challenged in court, but both suits failed.
A federal court challenge by Republicans to new congressional lines was successful. The Third District, a “majority-minority” district, had been created with backing from the Justice Department. Virginia redrew the district in 1998 to make it more compact, reducing its black majority from 64 to 53 percent.
But perhaps what Virginia wants to avoid most is the disaster of the 1981 redistricting. That year, a court determined that the House of Delegate districts were unconstitutional, but the ruling came too close to November elections. That forced delegates to run in their old districts in 1981, redraw the lines and run for their new seats in 1982. They then ran again in the regularly scheduled elections of
The push toward commissions
While the legislature controls the redistricting power in most states, there is an increasing push from citizens to give the power to independent commissions.
In California, where congressional districts are so gerrymandered that only one of the state’s 53 districts in the U.S. House of Representatives has changed party control in the last decade, voters have awarded redistricting power to a bipartisan commission.
Proposition 11, passed by California voters in 2008, transferred legislative redistricting power to a 14-member Citizens Redistricting Commission. In 2010, the voters chose to add responsibility for drawing congressional lines to the commission as well. The commission will be required to draw nonpartisan districts.
Florida’s voters approved less drastic changes. They approved constitutional amendments that will require that Florida legislators draw congressional and legislative districts that are “compact, as equal in population as feasible, and where feasible must make use of existing city, county and geographical boundaries.” Experts expect this to increase legal challenges to districts.
Arizona and Iowa are states that often are held up as examples of good redistricting practices because they use bipartisan commissions, although Iowa’s commission is advisory. “I only really view Arizona’s commission as independent,” says McDonald of GMU. Arizona, which uses a model similar to the new commission crafted in California, provides an in-depth selection process to ensure its members are nonpartisan. “There’s a vetting process in place to weed out these wolves in sheep’s clothing,” McDonald says of Arizona’s commission.
Arizona’s commission, however, did run into problems creating more competitive districts because of the strict criteria it follows. McDonald says Arizona’s experience with commissions shows that competitive districts are likely best drawn when flexibility is allowed among the criteria, such as compactness, geographical boundaries and minority populations in the district.
And now it’s Virginia’s turn to experiment. As lawmakers choose their voters this year, perhaps they’ll heed the advice of McDonnell’s advisory panel or at least some eager college students.