The Proposed Virginia Redistricting Amendment Is a Bad Deal That Needs To Be Rejected.

by Chris Ambrose

I went to the December 11 debate on the proposed Virginia redistricting amendment, between Delegate Mark Levine and OneVirginia2021 Executive Director Brian Cannon, and was struck by the number of people in attendance who felt that supporting the amendment is the only way to end gerrymandering in Virginia for the 2021 redistricting.  The crowd was split between people who were outright opposed to the amendment and those who supported it. Those opposed included both partisans who would like to see the Democrats lock in a majority and people who are just plain concerned about the flawed nature of the amendment.  But what was surprising was that many of the supporters understood how flawed the amendment is, but mistakenly believed it was the only option short of a gerrymandered legislature.

I have been a supporter of ending gerrymandering for decades, and have been a big supporter of OneVirginia2021’s work to bring reform to Virginia.  Competitive districts are good for Democracy and promote good governance. But this amendment is a bad deal.

The fact is, OneVirginia2021 has an institutional bias to take anything they can get to be able to claim a victory, while at the same time pointing out that major reforms need to take place to that amendment prior to 2031.  In this way, they have extended their life as an organization. Brian Cannon has made clear their thinking by taking the position that “a bird in the hand is worth two in the bush” and saying there is much work to do later to improve this flawed amendment.  Virginia deserves better than that.

The amendment – introduced by Republican Del. Mark Cole, and not the original OneVirginia2021 amendment – was rammed through last session, with many legislators only having minutes to review it.  This is no way to amend the constitution. Among other problems, the amendment abandons the idea of an independent commission as supported for years by OneVirginia2021. That position allowed them to get thousands of people to sign petitions supporting their initiative. They like to cite that grassroots support when they push this amendment but, in fact, what is being proposed does not represent what they were proposing when they solicited that support.  Personally, I would never have signed the petition if I had been told that their solution would give two Republican legislators a veto over the maps and would give the Virginia Supreme Court – which is 100% controlled by Republicans – the final say over what the maps looked like.

The Virginia court system is different than most states, in that the courts are totally picked by the legislature. This means the Supreme Court is Republican-controlled, since the Republicans have had a lock on the legislature for a generation.  Also, unlike with federal courts, Virginia Supreme Court Justices serve 12-year terms, at which point they need to be reappointed by the legislature.  Therefore, every Republican Justice’s job depends on keeping the legislature red.  It is an inherent conflict of interest.

IT GETS WORSE…

The amendment provides no real guidelines on how the Court can decide to draw the districts, so the Justices technically can do anything they want.  OneVirginia2021’s position has been that this problem can be fixed with “enabling legislation.”  At a recent event where OneVirginia2021 assembled a group of panelists who all were pushing for the Amendment, one of those panelists acknowledged the weaknesses and actually said, “We can pass enabling legislation to outlaw gerrymandering.”  Excuse me?  Isn’t that the purpose of the Amendment?

At the debate the other day, Del. Mark Levine pointed out that enabling legislation cannot constrain the Supreme Court, since the court is only constrained by the language of the constitution itself, and that this constitutional amendment sets no guardrails on the Justices.

So, on the one hand, OneVirginia2021 director Brian Cannon acknowledges that the amendment is flawed and says enabling legislation is critical. But on the other hand, he (correctly) says we can’t trust legislators to do what is right when it comes to redistricting. Except…that is exactly what he is doing.  What Cannon is proposing, essentially, is to pass a knowingly flawed amendment and trust the legislature to pass legislation that will effectuate a fairer redistricting – and then keep his fingers crossed that the Republican-controlled Virginia Supreme Court (see here for a list of Justices, including a former close aide to far-right Ken Cuccinelli) follows the legislation, since it can’t be bound by it.

That is an absurd contradiction. The amendment is fatally flawed because, as OneVirginia2021 pretty much admits, it is almost worthless without enabling legislation and you can’t trust a legislature to always do what is right.  Therefore, you could get great enabling legislation passed by the Democratic-controlled legislature in 2020 that creates competitive districts (and pray that the court does not redistrict in a way that favors Republicans), and then have a situation where the Republicans take over before the next redistricting and pass their own “enabling legislation” that ensures Republican control going forward.  Make no mistake about it, future Republican enabling legislation WILL seek to gerrymander.

For those who feel the courts are not going to do this in a partisan way, don’t forget that the Republican-dominated courts intervened in two House races in 2017.  In one, they awarded a vote to Republican David Yancey, resulting in Democratic Shelly Simonds losing a race (and by extension Democratic control of the House of Delegates).  That vote had already been agreed to be invalid by the Republican observer of the recount.  It was a breathtaking overreach.  The courts also selectively counted votes in the Josh Cole race in Fredericksburg that cost Democrats that seat in 2017.  Essentially, the courts handed the Republicans control of the Virginia House of Delegates for the past two years. Luckily, both of those candidates (Simonds and Cole) ran again in 2019 and won again – but this time by large enough margins to keep the courts out of the process.

SO HOW DO WE GET AN IMPROVED PROCESS IN TIME FOR THE 2021 REDISTRICTING?

Perhaps the biggest fraud being spread by the advocates of the amendment is that the amendment currently being debated is the only chance to fix the process.  This argument claims that it is too late to pass another amendment to govern the 2021 redistricting, and thus that Virginia will be stuck with gerrymandered districts for ten years if the legislature doesn’t pass it.  (I should point out that many Democrats would be keen on that idea, considering how the Republicans treated the Democrats for the past two plus decades – but that doesn’t make it right.)   This is a false argument.

In fact, a better amendment similar to what OneVirginia2021 was promoting for years could be passed.  The problem is it could not go to the voters until at least 2022, after the 2021 redistricting is completed.  The amendment could call for a new redistricting after it took effect, rather than waiting until 2031. But there is still a better way.  The ideal way to ensure we get it right is to pass legislation in the upcoming session that ensures that the 2021 redistricting is conducted on the same terms as those in the eventual amendment, which would go into effect for the 2031 redistricting.

I don’t know exactly why OneVirginia2021 is so determined to pass a flawed amendment, and trust the legislature to pass enabling legislation in an effort to fix it, rather than pass a good amendment with legislation that ensures the spirit of the amendment is followed for the upcoming redistricting.

The only obstacle I see is whether the Democratic caucus can come to a consensus on a good solution.  I like Del. Levine’s solution with the efficiency gap, but too many options complicate things with the short time left.  The incoming leadership of the House and Senate should be working to build a consensus around an alternative, rather than leaving the situation to an up-or-down vote on the flawed amendment – or no guidelines at all.

If OneVirginia2021 wants to get it right, they should be spending their time lobbying to get their original vision, as opposed to this more Republican-friendly version, of an independent commission passed and get it done once and for all, rather than pushing for this flawed amendment.  Of course, the organization would then no longer have a purpose.

Part of this is just an example of what happens when institutions seek a cause to exist.  If OneVirginia2021 ends gerrymandering in the next couple years, it won’t have to spend the next decade trying to replace a flawed constitutional amendment.  Brian Cannon will no longer have a job to wage the fight he says he wants to wage over the next decade to “fix” the amendment.  It won’t be necessary.

Bottom line: In the coming weeks, people need to lean on their legislators to reject this flawed amendment and get behind a truly non-partisan independent process for 2021 and beyond.