I Voted Sticker

Many people inveigh against partisan gerrymandering. Now, we in Virginia are about to do something about it.

At its most recent legislative session, the General Assembly passed a constitutional amendment that would effectively end that nefarious practice by giving citizens a direct say regarding the drawing of legislative and congressional districts in Virginia. Moreover, the amendment requires that our political maps be drawn in a process that is open to public view and public participation. For the first time, Virginia’s political districts would be drawn by a redistricting commission, rather than by the legislators whose districts are at stake.

The amendment includes many of the reforms proposed last fall by the Citizens Constitutional Amendment Drafting Committee, of which I was a member. Convened by the nonpartisan redistricting reform group OneVirginia2021, the committee of bipartisan former legislators, policy professionals and election law experts developed a model amendment that was introduced in the 2019 Assembly session. That proposal’s emphasis on a separate redistricting commission, transparency and citizen participation are evident in the compromise passed by the legislature, though not its explicit prohibition on drawing districts to favor any party or candidate.

It must be said that the amendment that eventually emerged from the recent legislative session preserves a larger role in redistricting for the legislators themselves than most reformers sought. Where our committee had proposed a redistricting commission composed entirely of citizens, the commission fashioned by the General Assembly would be half legislators and half citizens. Where we had proposed a process that included political independents in equal measure to Republicans and Democrats on the commission, the Assembly’s version instead divides a 16-member commission evenly between appointees or nominees of the two major parties.

The General Assembly did not adopt the explicit bar to gerrymandering proposed by the Citizens Drafting Committee. But the legislature did include checks and balances making it unlikely that new districts would be skewed to favor one party or the other. One such check requires that new districts need the approval of six of the eight lawmakers on the commission plus six of the eight citizens. That twin supermajority can be achieved only by securing votes from members associated with both parties. The Citizens Drafting Commission model also required a bipartisan supermajority.

Another important check against partisan gerrymandering is the amendment’s requirement that the Virginia Redistricting Commission conduct its meetings in public, make its data and documents available for public view, and hold public hearings around the state before adopting any new districts. Recognizing that gerrymandering thrives behind closed doors, the Citizens Drafting Committee, too, had posed such transparency as a preventive.

The amendment enjoys overwhelming bipartisan support. After rounds of committee votes and compromise, the General Assembly passed the amendment proposal by decisive votes, 39-1 in the Senate and 85-13 in the House of Delegates.

This is a promising start, but much work remains to be done. For the proposed amendment to become part of the Constitution, two more steps are required. The amendment agreed to this year must, without any changes, pass the General Assembly again in 2020. It must then win the approval of Virginia’s voters in a statewide referendum on the November 2020 ballot. The new Virginia Redistricting Commission would go to work in 2021, when all 100 House of Delegates, 40 Virginia Senate, and 11 U.S. congressional districts must be redrawn to reflect the results of the upcoming U.S. Census.

In addition to passing the amendment, next year’s General Assembly must pass enabling legislation that will include significant details about the operation of the new commission. At least three questions present themselves. Should the redistricting commission strive to keep communities intact by respecting existing city and county boundaries? How can the process ensure that Virginia’s diversity is reflected in the commission membership? Should the legislature’s nominees for citizen commission members include independent voters, perhaps defined as those who don’t vote in partisan primaries?

Virginia’s 1776 Declaration of Rights proclaims the need for a “frequent recurrence to fundamental principles” — an admonition still found in our Constitution. What could be more fundamental than protecting the right to fair representation in the councils of state and federal government? The proposed amendment to the Constitution of Virginia is an historic step in that direction.

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A. E. Dick Howard is the Warner-Booker Distinguished Professor of Law at the University of Virginia. He was the chief architect of the present Constitution of Virginia. Contact him at dhoward@law.virginia.edu.

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