Revolution in Virginia: The legislature cedes a spoil of partisan advantage
It’s been a bad month for Virginia’s government, with controversies around racism, sexual assault and the “Virginia way” enveloping its three elected state leaders, and the legislature unable to formulate a response. As if to affirm Virginia is still mired in the Civil War, with all manner of its leaders donning blackface when in other places white men knew better, the ruling Republicans in the General Assembly killed a bill to allow localities to remove statues honoring warriors for slavery.
So it was astonishing to see the General Assembly on February 23 take the first step to create a semi-independent commission to draw lines for state legislative and U.S. House districts.
It is a reform long in the making, backed by former leaders in both parties, sparked by citizens’ revulsion at gerrymandering and, most importantly, driven by the GOP’s awareness that its two-seat margin in each chamber is about to slip away for a generation. Thus the party raced ahead of conventional prediction: the majority will support non-partisan redistricting the second it’s in the minority.
For a decade redistricting reform has been on state ballots, in federal and state courts, and considered with varying degrees of seriousness in state legislatures. The Supreme Court has so far declined to address whether political gerrymandering is unconstitutional.
This debate over democratic legitimacy is much like the one we struggled with for the first seven decades of the last century: whether state legislative districts must reflect population. In the early 20th century, many legislatures simply stopped remapping their districts as urban populations overtook rural areas, even as the Constitution required them to redraw U.S. House maps following the decennial census. Future Chief Justice Earl Warren, as governor of California, defended rural power as Los Angeles and San Francisco overwhelmed the population of districts whose reps ran the state assembly.
But in 1962, after turning away case after case, Chief Justice Warren’s court ruled in Baker v. Carr that “one person one vote” was a principle of representation that applied to the states and that the question of whether their districts were fairly drawn was “judiciable,” a question for courts. And in Reynolds v. Sims (1964), the high court declared that state legislative districts must have equal populations, and that whether their structure reflected Congress (the Senate’s membership is unrelated to population) was irrelevant. For the court, Warren wrote, “legislators represent people, not trees or acres.”
The U.S. Senate Republican leader, Everett Dirksen of Illinois, backed by moneyed interests and a sophisticated PR firm, led a campaign to overturn Reynolds by constitutional amendment. It fizzled two states short of ratification when, after redistricting in 1971, the republic did not collapse.
A half-century later, gerrymandering presents similar questions of democratic legitimacy. As in the lead-up to Baker, the Supreme Court has skirted it, remanding cases in Wisconsin, Maryland and North Carolina. (In March it will hear two more, a reframing of Maryland’s political question from a year ago, and a racial gerrymandering case from Virginia for the second time.) But lower federal and state courts have struck down politically gerrymandered districts (racial gerrymandering has long been unconstitutional). Meanwhile voters have demanded reform, most recently in Michigan and Utah, where in 2018 they passed citizen initiatives for independent commissions. California voters did so a decade ago, and its commission is the gold standard — one of many states where map-drawing is at least partly independent of state legislatures.
Like all legislative handiwork, the Virginia plan is imperfect, but it’s better than we reformers thought possible last fall: a 16-member commission of eight partisans — two each appointed by respective party leaders in the state senate and house — and eight citizens selected by a panel of retired judges. Six members of each group would be required to approve the maps, and the Assembly would be allowed to vote only up or down but not amend. A year ago the leading advocates — OneVirginia2021 and the League of Women Voters — thought it impractical to advocate any citizen participation.
The Senate passed the constitutional amendment 40–0, the House of Delegates 83–15. The Assembly will have to approve an identical measure in one year, before it goes to the ballot in November 2020 — in time for redistricting in 2021. Assuming the commission is effected, the Assembly may write statutory guidance about membership and map criteria.
A year ago, Republicans were thinking that their 15-seat loss in the 2017 House elections was a flash in the pan. Then last fall the state’s congressional delegation flipped from 7–4 Republican to 7–4 Democratic. And this month a federal court cleared the way (pending a long-shot reversal from the Supreme Court) for 26 redrawn House lines that are likely to give the Democrats control of both chambers. Barring Trump landing in jail to energize the base before November, Republicans see the writing on the wall.
If fear is what it takes, cool. My friends in my former home state will, I anticipate, hold the Democrats’ feet to the fire, assuming they take control in the November elections. Two years from now, Virginia will draw fair lines, without favor to parties or incumbents.
