by Delegate Mark Levine (D-Alexandria/Arlington)
A “poison pill” [paragraph (d)] of the proposed amendment to Virginia’s Constitution, allows just two Republican legislators to jettison its commission entirely. I call this “poison pill”– forcibly inserted by the Republican majority on the last day of the 2019 session — the “Republican Option.”
If Virginia Republicans choose to exercise the Republican Option, they’d put Virginia’s redistricting entirely before partisan Republicans on Virginia’s Supreme Court.
There is no restriction on gerrymandering in the proposed amendment. The Virginia Supreme Court simply “establishes the districts” at its whim. [paragraph (g)]. And as the Constitution trumps the law, the legislature can put no guardrails upon the Republican panel’s choices. Nor is there any appeal. The US Supreme Court has ruled no court may intervene in political, non-racial gerrymandering.
Virginia’s Supreme Court is our nation’s 18th most conservative, the partisan equivalent of Kentucky, our nation’s 18th most conservative state.) Virginia’s former illegally-constituted Republican legislative majority chose this Republican panel for 12-year terms. In the other 48 states, state courts are chosen by the People or Governor. But only in Virginia and South Carolina can an unrepresentative, gerrymandered legislature likewise create an unrepresentative state high court.
By legislators choosing the very judges who choose the same legislators, the former Republican majority can perpetuate itself indefinitely. In fact, Virginia’s Republican leadership is counting on this amendment to ensure Virginia never has a Democratic legislative majority again.
Nor could the Virginia Constitution be changed again, as, unlike in other states which allow referendums, Virginia requires the Legislature – not the People – initiate any constitutional change. Why would any Republican-controlled body disrupt its perpetual power once it’s enshrined in the Constitution?
Some supporters of the amendment insist (without evidence) that Virginia’s justices have zero partisan bias. But what about the sister of a sitting Republican senator? Or a former Republican legislator? Or Ken Cuccinelli’s right-hand man, a self-styled “Scalia judge” chosen to replace former Justice Jane Marum Roush after she was dumped by the Republican legislature for being too “bipartisan”? Does it matter that Cuccinelli once led the gerrymandering amendment effort?
Even supporters agree the amendment is flawed. They ask us to support it anyway as “better than nothing”. But something is not always better than nothing. Don’t eat rotten food. Throw it away and get fresh food.
We can have a truly balanced, independent commission instead. Democrats, unlike Republicans, are committed to ending gerrymandering. We can pass a law in the 2021 session that will ensure fair maps for 2021, with district lines so transparent that any mathematician with a calculator could call us out if we failed to obey our own mandate. We could refine that plan and enshrine it into the Virginia Constitution by 2022. In fact, I’ve proposed a detailed amendment to do just that.
We should never rush to amend our Constitution. After all, the goal is not to do some thing about gerrymandering but to do the right thing. This proposal, as I explain above, is permanent. If you make the mistake of voting for this amendment, you will never have the opportunity to undo your mistake.
I don’t want to be Cassandra, the goddess of Greek mythology whose accurate prophesies of disaster went unheeded until it was too late. Call me cynical — but don’t call me Cassandra.
We have an uphill battle to defeat this amendment, and we face a multi-million-dollar lobby financed heavily by Republicans. We will need all hands on deck to stop this impending disaster.
I don’t think our Constitution should enshrine a permanent Republican option to forever draw all of Virginia’s district lines. Let’s vote NO on the Amendment in 2020 and YES on my independent-commission plan or other similar plans offered by Democrats in 2021.