by Henry L Chambers, Jr. is Professor of Law, University of Richmond. The author teaches voting rights and served as a special assistant attorney general for redistricting matters in the Virginia Attorney General’s office after Virginia’s post-2010 census redistricting. His views are his own.
Amendment 1’s supporters often suggest their support is based on the concept that the voters should select their representatives rather than vice versa. The slogan is cute but stunningly misleading when applied to Amendment 1. First, the slogan is irrelevant to congressional redistricting – which Amendment 1 covers – as members of the General Assembly do not craft their own districts when they draw Virginia’s congressional districts. Second, even as applied to state legislative districts, the slogan bears no relation to what Amendment 1 does.
Rather than remove the General Assembly from the redistricting process, Amendment 1 embeds the General Assembly deeply in it. Party leaders in the General Assembly choose which legislators will serve as eight of the 16 members of the Virginia Redistricting Commission (VRC). Those leaders also produce the lists from which the eight citizen members of the VRC will be chosen. Apparently, there is no snappy slogan to suggest the General Assembly should not be involved in choosing the members of the VRC.
In addition to helping pick the VRC’s members, the General Assembly must approve the VRC’s maps before they become law. Amendment 1 allows the General Assembly to reject the VRC’s maps once, then approve or reject maps the VRC resubmits to the General Assembly. Presumably, the debate regarding the initial rejection of the VRC’s maps would guide the VRC in how it should redraw the maps if the maps are to gain approval on resubmission. Unless individual legislators are barred from speaking to their colleagues on the VRC, legislators who are not members of the VRC can suggest how districts – including their own – should be drawn. Members of the General Assembly have ample opportunity to let their desires be known regarding redistricting. Amendment 1 makes a mockery of the slogan.
Of course, the slogan can be interpreted more generally to mean individual legislators should not be allowed to draw their individual districts to their liking. That is a fair point, though having a district that is favorable for one’s reelection will not matter if one does not survive a primary. Numerous legislators learned that in the last decade. State Senator Rosalyn Dance realized that when Joe Morrissey challenged her. Republican Congressman Eric Cantor suffered a loss when Dave Brat challenged him. After a few terms in Congress, Dave Brat lost in a general election to Democrat Abigail Spanberger. Districts can morph over a decade.
Of course, the slogan contains a kernel of truth. Legislators should not craft their home districts to ensure their own electoral success. Of course, legislators should not complete any legislative tasks – including redistricting – with their personal interests in mind. Virginia’s legislators are part-time. They could legislate in service of their day jobs. However, their ethical obligations suggest they should recuse themselves if their interests are affected directly by proposed legislation.
If legislators cannot be trusted to ignore their personal interests when redistricting, there are many issues on which they probably should not be allowed to legislate. If Virginia’s legislators cannot be trusted to produce redistricting maps free of their personal interests, Virginia needs a different set of legislators, not a new redistricting commission.
The fact is, Amendment 1 is deeply flawed. If Amendment 1’s supporters vote for its passage because they want the General Assembly to control redistricting with a little input from the citizen members who serve with legislators on the VRC, fine. Conversely, if they want the General Assembly to be out of the business of drawing districts, Amendment 1 should not have their vote.
Voters should not be fooled by a clever slogan that bears no relation to what Amendment 1 does.
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