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Judy Ford Wason Center for Public Policy

Wason Center

April 11, 2019

Stage 1 of Redistricting Reform in Virginia is Complete. Here is What You Need to Know About It

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Virginia made of red dots

Editor’s Note

Under current Virginia law, the authority for redistricting rests with the General Assembly and is subject to veto by the Governor.  While partisan interests have guided the redistricting process for decades, the development of computerized mapping tools and detailed demographic data turned mapmaking into an exact science, allowing lawmakers to draw districts to optimize outcomes such as seat share size for the party in power.

In Virginia, the party in power for the last redistricting cycle in 2010 following that year’s census and reapportionment was the Republican Party. Like other Republican-controlled legislatures, the Republicans used the 2010 redistricting to further consolidate their power in the state by commissioning maps that favored their party for both the state legislature as well as the federal House of Representatives. The maps were the realization of a plan that had been put into place years before by the Republican National Committee called Redmap. Redmap sought to capitalize on a good national environment for Republicans in the 2010 midterms that coincided with the redistricting cycle to greatly enhance the Republican Party’s footprint at the state level.

Under the revised maps Republicans improved their seat share in the General Assembly, winning control of the state senate in the 2011 cycle and adding to their House majority over Barack Obama’s tenure. They also controlled all but 3 of the state’s 11 seats in the House of Representatives. However, at the same time that the Republican Party’s fortunes were improving in state legislative elections via favorable district maps, Republicans were losing major statewide races to Democrats including the 2013 and 2017 gubernatorial elections as well as the 2012 and 2018 senate elections. The disconnect between the Democratic Party’s share of the two-party vote in state-wide elections and its comparatively small share of seats in the state’s Assembly and House delegation led to attention from citizen groups who sought to enact reforms to the redistricting process before the 2020 cycle. Initially, these efforts largely came from the left and from non-partisan public interest groups, but more recently, redistricting reform has gained some traction among some Republicans due to the role political scientists argue partisan gerrymandering plays in exacerbating polarization and ideological extremism.

Still, given the fact that reforms to the system have political consequences such as improving seat shares for Democrats, redistricting reform has failed to make it onto the legislative agenda (which is controlled by the majority party) until this session. The impetus for its consideration is the fact that after nearly a decade of litigation, the maps that are currently used for the House of Delegates have been ruled invalid and struck down as an unconstitutional racial gerrymander for several districts, as were several districts for the federal House of Representatives map two years previous. Although the Republican Party of Virginia is hoping for a last-minute reprieve from the conservative majority on the Supreme Court, the most likely outcome is that the 2019 state legislative cycle will occur under these new, court-mandated maps that were drawn by a non-partisan expert using a computerized system meant to maximize compactness of districts and without regards to the fortunes of several incumbent Republican delegates. Given this development, Virginia Republicans now feel that reforming the current system in a way that still retains some lawmaker control may be in their best interest, especially if Democrats will be in control of the process for the 2020 redistricting, which they may be if they win control of the legislature after this cycle.

Due to the passage of the first stage of a reform package in the 2019 session, I sent one of our research fellows to investigate the reform that was passed by General Assembly in the 2019 session and to speak with a key player in the redistricting reform movement, Brian Ross Cannon. Her report appears below. -RB

On Saturday, February 24th the Virginia General Assembly passed  SJ306, an amendment to the state constitution to create a 16 person advisory board to conduct redistricting comprised of both citizens and legislators where a bipartisan “super-majority” will be required for a new map to be adopted. The bill was a compromise bill that received bipartisan support passing 83-15 in the House of Delegates and 40-0 in the state senate.  The most popular proposal for redistricting reform at the start of the General Assembly session was a Constitutional amendment that would create a new commission to determine district lines. Senate Joint Resolution 274, introduced by Sen. Emmett Hanger (R-Augusta) and Sen. Mamie Locke (D-Hampton), provided for the establishment of the Virginia Citizens Redistricting Commission. This resolution differed from other redistricting proposals because it called for a commission that would be comprised of only registered voters in Virginia: five that affiliate with a major political party and twelve that do not affiliate with any political party. Sen. Hanger said, “We have an opportunity to make the process more public and I am pleased to support that effort as I have for the past several years.” However, several members of the General Assembly voiced concern about the accountability of the commission due to the fact that it would not include the input of elected officials. Del. Landes (R-Albemarle) stated, “I think it takes the power away from the General Assembly and that’s what the constitution both at the federal and the state level have always been given to the legislative body.”

Despite the efforts to create a bipartisan, citizen-led commission, SJ274 was killed in the Senate Privileges and Elections Committee. However, the fight for a Constitutional amendment to reform the redistricting process to include citizen involvement continued with Senate Joint Resolution 306. OneVirginia2021, an organization that advocates for fair redistricting in Virginia, worked on SJ247 and 306 throughout the summer and fall. Brian Cannon, the Executive Director of OneVirginia2021, stated that SJ274 is “ideally how you would do redistricting reform in Virginia in a fair way” but the “reality is that 274 was always going to take a haircut and get a compromise.” SJ 306, introduced by Sen. George Barker (D-Alexandria), will establish the Virginia Redistricting Commission. This commission would comprise of 16 members: eight legislative members and eight citizens. While SJ274 prohibited the General Assembly from amending the final map, SJ 306 gives the legislature authority to approve or reject the committee’s final map. “SJ306 is a hybrid of what reformers want and what politicians who want some kind of reform but not too much want,” said Brian Cannon. A key distinction between SJ274 and SJ306 is that the latter lacks specific provisions that would prohibit gerrymandering. However, Sen. Barker stated, “We think it provides a lot of protections, and there are a lot of checks and balances in there to get the best decision for the commonwealth.” On February 23, SJ306 passed by a vote of 85 to 13 in the House and 39 to 1 in the Senate. On March 7 and 9, respectively, SJ 306 was signed by House Speaker Kirk Cox (R-Colonial Heights) and Senate President Justin Fairfax (Lt. Gov).

Despite SJ306 being passed in both chambers of the General Assembly, it is predicted the legislation will not impact the upcoming November elections. Brian Cannon stated, “what is wrong with 306 is just what’s missing from it – how do we get the citizen application? How do we do the criteria piece? And how do we get more transparency?” However, these missing pieces can be added in the 2020 session and Cannon stressed that implementation matters. He stated that Virginia can pass a good law on paper but “we still need to be a watchdog group and support the citizen commissioners and support Virginians getting engaged in the map drawing process.” All in all, Cannon believes that SJ306 is “the most comprehensive redistricting reform to ever pass a state legislature in the country.”

In order for any redistricting reform to actually be implemented, the proposal must be reconsidered and passed in the next session of the Assembly as well. This is due to the fact that redistricting is provided for in the state’s constitution and amendments to the constitution must be passed in back-to-back-legislative sessions before they can become law.

One of the main reason the General Assembly took action on redistricting this cycle is due to the fact that new, court-ordered maps have been put in place for Virginia’s 2019 state legislative elections. Last June, a panel of judges from the U.S. District Court for the Eastern District of Virginia heard a case brought by Democrats who claimed that there are existing districts that violate the U.S. Constitution because Republicans drew minority-majority districts with a set 55 percent African-American population. The judges ruled that 11 House of Delegate districts in Richmond and Hampton Roads were racially gerrymandered and were “designed to concentrate black voters and deprive them of representation.” The judges ordered a new map to be drawn; however, the Republican-controlled General Assembly and Democratic Gov. Ralph Northam failed to reach a conclusion on how to redraw the districts. The judges appointed an outside expert, Bernard Grofman, as a “special master” to redraw the lines in a more racially-neutral fashion.

On January 22, the judges announced that they chose a combination map from the special master’s plan that would “evenly distribute black voters and put more Democratic-leaning voters into districts held by Republicans.” The U.S. District Court for Eastern District of Virginia voted 2 to 1 to finalize the map. This will put six incumbents in districts that will likely swing Democratic in future elections. Republicans currently hold a slim majority in the Senate (21-19) and the House of Delegates (51-49). However, the redrawn map may allow Democrats to take over a majority in the General Assembly in the 2019 election. The new map endangers the seats of Speaker Cox and Chairman of the House Appropriations Committee Del. Chris Jones (R-Suffolk). Del. Cox and Del. Jones are likely to see their districts shift by 32 and 27 percentage points to the left, respectively. Furthermore, according to the Virginia Public Access Project, several Democrats who won in 2017 or closely divided districts would see more of a Democratic base in future elections. Cannon stated that the court drawing the map was not ideal; however, the process is “marginally better than legislators drawing their own districts.” When asked about Del. Jones’ district, Cannon stated that Jones’ district was “so badly gerrymandered that if the courts had kept just part of his district (Suffolk) together, it would have turned into a blue district.” However, he believes the new map reflects the community of this district better. When asked about Cox’ district, Cannon stated that his district was “fine” the way it was with the old map. He said the district was compact, it included communities of interest, and although the district was not competitive, it does not necessarily have to be because the district is already in a red part of the state. Cannon further vocalized that the “special master’s map went almost out of its way to redraw his district,” even though no other maps that Cannon saw went after the Speaker’s district to this degree. However, Cannon stated that it is a “step in the right direction” that the map was not drawn to specifically benefit incumbents.

When asked about the new redistricting map, Del. Cox said, “we will continue to fight for the 2011 redistricting plan.” Del. Cox appealed the redistricting to the United States Supreme Court in Virginia House of Delegates v. Bethune Hill. The court agreed to take the case and heard the argument on March 18, 2019. However, the Supreme Court declined to delay the map redrawing process, meaning the lower court’s map will be enacted unless the Supreme Court overturns the map. However, the legal action is likely to delay Virginia primary elections from June until sometime after Labor Day. One of the major questions before the court deals with whether or not the House of Delegates has the standing to file such a case, which is likely to set a precedent for the future. The arguments have not been published yet, but Cannon predicts that the lower court’s opinion is “going to stick,” assuming that the liberals on the court will stay consistent.

So, what can Virginians expect from redistricting in the future? Cannon offered his insight on what he believes would be the best and worst case scenarios for future redistricting. The best case is that SJ306 will pass again next year in the General Assembly but it will “go hard on an open application process for citizens to join the system,” establish “clear rules by which we know our districts will be drawn” and include “more open data and open meetings.” The worst case is that “we let partisans do it again and end up with a partisan gerrymander by the Democrats or the Republicans,” have no clear rules or an open application process for citizens, or end up with a bipartisan gerrymander again. Cannon stated that Virginia will have much better maps in 2021, but “no map is perfect,” there is a lot of room for improvement.

The Judy Ford Wason Center will continue to provide information and updates on the redistricting process in Virginia throughout the year.

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