Virginia’s New Gerrymandering Reform Triggers Old Fears Among Black Officials

Virginia lawmakers came together this past weekend to pass—by overwhelming, bipartisan margins—a proposed constitutional amendment to overhaul how political lines are drawn in the commonwealth.

The proposal has generally been received as an imperfect but significant compromise that injects transparency and citizen input into the redistricting process for the first time in the Old Dominion’s history.

Some lawmakers, though, see no cause for celebration. Members of the Legislative Black Caucus have argued that the proposed amendment will enshrine in the commonwealth’s constitution a redistricting process that treats race as an afterthought.

Their concerns go to the heart of a decades-long debate over how to deploy redistricting to ensure that minority candidates get elected to office, and also that there is fair, meaningful representation of minority voters in statehouses and on Capitol Hill. This conversation is particularly freighted in southern states like Virginia, which has a bitter history of state-sponsored racism and just saw its two top white Democrats consumed by controversies over dressing up in blackface.

“To think that in the middle of the political climate that we are in and all the racial equity talk that we have heard, we’d move forward with a proposed constitutional amendment with language that does not protect the voters who clearly need to be protected,” Democratic Delegate Marcia “Cia” Price, who is black, told TPM in a phone interview. “I think is a major overstep and a major misstep.”

The vast majority of lawmakers signed off the proposal, which would take map-drawing authority away from the Senate leader, House speaker and governor and turn it over to a 16-person bipartisan commission equally composed of lawmakers and citizens. Under Virginia law, the proposed redistricting constitutional amendments must now be passed by the General Assembly a second time next year, and then approved by voters at the polls in November 2020. That makes the pending amendment the last best chance to change the state’s redistricting process before the next redistricting cycle begins in 2021, advocates say. Once the redistricting amendment is enshrined in the constitution, it will be very difficult to change.

The Senate voted for it unanimously, while the House approved it by a vote of 83-15. While the Legislative Black Caucus did not vote as a bloc, the bulk of the votes against the amendment came from its ranks.

Joseph Lindsey, an African America delegate who represents a majority black  district, called the measure “piss-poor” in outraged comments on the House floor, arguing that lawmakers were being forced into “accepting something at the last minute.”

“I don’t think its better than what we have now and in fact I think it takes a step back because now at least we have African Americans at the table and in the room,” Delegate Lamont Bagby, chairman of the Legislative Black Caucus, told TPM in a phone interview. “I would be willing to bet this reform will lead to African Americans not even being involved in the process.”

Lawmakers who voted “yes” and voting rights advocates counter that the reform is in fact better than the status quo, in averting both racial and partisan gerrymandering. Virginia, like many states, have been mired in legal fights since the once-a-decade redistricting process last occurred in 2011.

The courts have determined that the GOP-controlled legislature drew both congressional and state-level boundaries based on voters’ race. Black residents were intentionally “packed” into certain districts in order to dilute their voting power and create whiter, more Republican surrounding districts, the courts determined. A federal court ended up redrawing the Virginia’s congressional map, and a new state House map could still be drawn with just two years to go before the next nationwide redistricting cycle kicks off.

Amid this tense background, Virginia lawmakers have been proposing a rash of solutions to try to reform the system. Republican House Speaker Kirk Cox agreed for the first time this year to support an independent commission, citing exhaustion with the federal court battles.

Voting rights advocates have identified another possible reason for this about-face.

“The Republicans are worried that Democrats are going to have a trifecta and be in control of the General Assembly and Governor’s mansion in 2021,” Brian Canon, executive director of redistricting reform group OneVirginia2021, told TPM.

“And Democrats who have been dragging their heels on this or who have been opponents of this are now at the table because they’ve got primaries,” Canon continued. “So it was kind of the perfect storm of self-interest, timing, and policy being right that got this over the finish line.”

Advocates including Canon say they wanted a truly independent commission that included no lawmakers. They also agree with black legislators’ concerns that racial and ethnic diversity are not explicitly laid out as key criteria for the commission in drawing district boundaries. Instead, the amendment simply urges the commission to draw districts that allow minority communities to elect minority candidates “where practicable.”

But the reformers TPM spoke to argued that the proposed amendment at least provides transparency in the form of citizen commission members who can keep an eye out for bad lawmaker behavior. Democratic leaders are likely to push for the inclusion of minority lawmakers on the commission. And the criteria issue can be addressed via subsequent legislation, they said.

“Work is clearly not done on this,” said Rebecca Green, co-director of the Election Law Program at the College of William and Mary. “We need to roll up our sleeves and figure out a way to make sure that minorities are represented and that their concerns are part of the drafting process beyond what federal law requires.”

Democratic Delegate Sam Rasoul, the sole Muslim in the Virginia legislature and a member of the Legislative Black Caucus, told TPM that he voted for the amendment despite its flaws knowing more work would follow.

“In regard to the eight citizen members, both geographic and racial makeup can be specifically outlined in subsequent legislation,” Rasoul told TPM. “Those are valid concerns that need to be addressed.”

His colleagues who opposed it say they’re not so sure that will happen.

If the General Assembly “had any interest in addressing our concerns,” caucus chair Bagby, who represents a majority black district, told TPM, “they would have done it on the front end, not on the back end. Blacks have been getting the back end and the crumbs for far too long.”

That’s why Price isn’t moved by talk of subsequent legislation. Price, whose majority- black 95th District was deemed improperly “packed” by the federal courts, has been at the frontline of the redistricting wars, pushing for a truly independent commission, the unpacking of majority-black districts, and criteria that would ensure Virginia’s redistricting process adheres to the Voting Rights Act.

“If a proposed constitutional amendment that has Voting Rights Act language in it couldn’t pass this legislature, that tells me everything that I need to know about where our priorities are about racial equity and cultural equity,” Price told TPM. “When they say we can do legislation, dude, the constitution trumps legislation!”

“So I will be very honest and transparent: those who would rather have something rather than nothing I think have the luxury of not having to fight to protect the voters that I’m fighting to protect,” she added.

Justin Levitt, an expert on redistricting at Loyola Law School in Los Angeles, told TPM that the dispute in Virginia speaks to a messy, decades-long national debate over how best to reflect the nation’s diversity through the redistricting process.

“If you don’t have the perspectives of a certain group of constituents in mind, you might intentionally or unintentionally draw lines that bulldoze over that constituency’s interests,” Levitt said, saying this struggle was “not in any way unique to Virginia.”

The early 1990s saw court battles over whether it’s better to concentrate minorities in specific districts to ensure they’re represented by minority elected officials, or to spread them out over multiple districts to account for their actual geographic distribution. Both approaches have been taken to extremes for nefarious purposes, in practices known as “packing” and “cracking” districts, respectively.

The desire to maintain majority-minority districts and protect incumbents sometimes led to an unusual alliance between minority Democrats and Republican lawmakers. In 2011, for example, every House member of Virginia’s Legislative Black Caucus voted for the GOP-drawn state legislative maps that were subsequently ruled to be a racial gerrymander.

But much has changed since 2011. The Supreme Court gutted the Voting Rights Act in 2013 and has shifted to the right. Lawmakers and reformers are issuing clarion calls to fix a redistricting system plagued by extreme partisan gerrymandering. And a new wave of more progressive, more diverse candidates have swept to state-level office, particularly in the 2016 and 2018 cycles.

Price said it was “so aggravating” for people to point to the 2011 process as a sign of minority lawmakers’ hypocrisy. She said she is part of a new cohort of black Virginia Democrats who want fair, transparent representation for their constituents rather than the backroom deals of the past.

“To go back and act like because previous black people did something, these black people should do that, too, that is asinine and absurd,” she said.

For now, lawmakers are home on recess. Virginia’s legislative session is done for the year. The fight over whether this proposed constitutional amendment is the best path forward for redistricting in Old Dominion will in resume in 2020—when the only options available to lawmakers will be moving forward with this flawed amendment or doing nothing.

This post has been updated.