Last year, Virginia voters approved a bipartisan commission to take politics out of redistricting.
The commissioners gave up on drawing any state House and Senate maps, resorting to the amendment’s fail-safe provision to let the state Supreme Court draw the maps in the event that they could not agree on a final product. Last week, commissioners gridlocked again on a congressional map, with Democratic co-chair Greta Harris comparing their repeated inability to transcend the impasse as “the definition of insanity.” The commission left open the possibility that it could return to continue debating a congressional map within a 14-day extension period that ends Nov. 8. But several commissioners say they consider that very unlikely.
Now, as numerous states around the country begin transitioning to or consider creating their own redistricting commissions, Virginia’s experience undoubtedly offers lessons.
Stephen Farnsworth, a political science professor at the University of Mary Washington, said Virginia should start thinking about substantial changes to the process before the next redistricting in 2030 to regain the confidence of voters who sought change. The commission, he said, “failed in every respect to do what the majority of Virginians thought would be the best way forward.”
“Failure should not have been an option, but that’s where this is headed,” Farnsworth said. “It seems extremely likely that there will be a new system in place for redistricting after the 2030 Census. I cannot imagine anyone looking at this process and saying, ‘Let’s give it another try.’ ”
Republicans in the General Assembly pushed the creation of the bipartisan redistricting commission just before losing the majority in 2019. Under the amendment, the commission is composed of eight legislators and eight citizens, evenly divided by party, and its members are appointed by the General Assembly’s Democratic and Republican leadership. But Democrats, while initially receptive to the overhaul, ultimately splintered.
Numerous Democrats on the Legislative Black Caucus opposed the bipartisan commission all along, saying the amendment and legislation lacked more explicit language to protect the interests of minority voting populations. Other Democrats opposed the amendment arguing that it would not take politics out of redistricting, since it was bipartisan rather than nonpartisan.
Del. Marcia Price (D-Newport News) — a member of both the Legislative Black Caucus and Fair Districts VA, one of the loudest lobbying arms against the amendment — said both sets of concerns were on full display over the past two months. The commissioners, she argued, failed to agree on a map that fully reflected Virginia’s changing racial and political demographics — and ultimately agreed on nothing. She said she favored an independent commission composed of just citizens.
“It’s frustrating but also predictable,” she said. “We did sound the alarm for two years, or longer, of what could happen if we went with this model of a commission, and I just think inherently when you have a partisan and political process you’re going to have gridlock. You’re going to have people looking out for their own self interests.”
The process was “doomed from the start,” said the nonpartisan Cook Political Report’s redistricting expert Dave Wasserman.
Early on, commissioners essentially created two parallel universes to work within — one Republican, one Democrat, choosing to “cut the baby in half,” as Del. Marcus Simon (D-Fairfax) put it. They couldn’t agree on one set of map-drawers, so they picked two sets: one Republican and one Democrat. They couldn’t agree on one set of lawyers so they picked two: one Republican and one Democrat. And when it came down to it, as commissioners tried to reconcile the two competing sets of recommendations, they never managed to.
“For me it was frustrating,” said state Sen. William M. Stanley (R-Franklin), who replaced state Sen. Steve Newman (R) on the commission after Newman resigned, “because it just seemed like there was never going to be a consensus if we could not put aside partisan divides.
What would it take for commissioners to do that? “That’s a tough question,” he said.
Stanley, for one, thought the inclusion of citizen commissioners inhibited legislators’ progress toward overcoming partisan gridlock, saying the citizens were not used to political negotiating. He also argued it didn’t help that some Democrats on the commission had opposed its creation.
One of them, Marcus Simon, ascribed the partisan gridlock to an innate “imbalance in bargaining power.” Republicans, he argued, had nothing to lose since they were already in the minority, while Democrats hoped to create a map that reflected gains their party has made over the past decade. Republicans haven’t won statewide since 2009 and currently hold only four of the commonwealth’s 11 congressional seats.
“I knew Democrats wouldn’t stand a chance of actually being able to negotiate a fair map because Republicans had a different set of incentives than we did,” he said. If negotiations failed, he said, “they had no real problem with it going to the Supreme Court full of members they elected.”
The amendment also required a supermajority of citizens and legislators to pass a map, which the architects intended to prevent any one group from having too much sway. But Wasserman argued the commission’s fatal flaw was the decision to forgo creating any kind of tiebreaking mechanism, such as the inclusion of third-party or self-described independents on the commission. (Virginia does not require party registration.) Other states would be wise to avoid that problem, he said.
“It’s a fool’s errand to believe that partisans appointed by party leaders are going to get in a room and hash out their differences to draw a map that neither party fully likes,” Wasserman said. “Unless there’s some mechanism for breaking a tie in favor of one party or the other, which New Jersey has, which Arizona has, which Montana has, there is never a chance of success.”
Virginia is one of 10 states to have passed initiatives shifting to commissions to draw its congressional lines. Many of the commissions, such as those in Colorado and Michigan, were created after the extreme gerrymandering that took place in 2011, as voters asked politicians to remove themselves from redistricting and cede the responsibility to independent commissions. Other states have tightened redistricting laws, adding requirements aimed at making it fairer.
But like in Virginia, many of those efforts have been mired by partisanship and dysfunction, undermining voters’ pleas for a fairer and less politically driven process.
In Michigan, Democrats and voting rights advocates have accused the new nonpartisan commission of GOP bias, and the congressional map it passed still favors Republicans in a state Biden won and that has a Democratic governor. In Colorado, a solidly blue state, the independent commission drew a congressional map that protects the four Democratic and three Republican incumbents, while intentionally drawing a new 8th District to be a toss-up. Latino advocacy groups have filed challenges to the map, saying it doesn’t take into account their growing demographic.
Sam Shirazi, an Arlington resident who was outspoken in providing public comment and submitting his own proposals, said he believed Virginia’s commission erred by not considering more public comment earlier in the process. Lawmakers, he said, also appeared to dominate the process compared with the citizen commissioners, when that runs counter to the ethos of a redistricting commission removed from the legislature.
“The biggest issues were elected officials being on the commission who obviously have certain interests and agendas,” said Shirazi, a lawyer with the Justice Department who stressed that he was speaking in his personal capacity and does not work on voting rights.
Whether there is any appetite for a commission composed of only citizens will probably form the thrust of Virginia’s next redistricting debate ahead of the 2030 Census.
The Democratic citizen commissioners either declined interviews saying they did not want to publicly discuss the commissioners’ work before it was definitively complete or they did not respond to a request. But two Republican citizen commissioners — Richard Harrell, a trucking executive, and Virginia Trost-Thornton, a plaintiff’s attorney — said they found the inclusion of lawmakers essential since they personally did not have experience in redistricting.
Harrell questioned whether an independent commission devoid of lawmakers could truly be “nonpartisan” either, believing it would probably encounter many of the same political problems while at the same time lacking expertise.
Sen. George Barker (D-Alexandria), one of the main Democratic architects of the bipartisan commission, agreed. He stood by the bipartisan structure of the commission and said it deserves a second chance in 2030. He said one mistake was that lawmakers should have included more explicit guidance in legislation on what it means to have a map that did not “unduly favor” one party or the other, and said lawmakers can do that before the next census.
One organization that lobbied hard in support of the amendment, however, has already seen enough.
“I certainly don’t think this has been an advertisement for having legislators on a commission,” said Liz White, executive director of OneVirginia2021, which through an offshoot, Fair Maps Virginia, pushed for the amendment last year.
Now, even though the state Supreme Court is expected to draw the maps, White said she still considered that a better outcome rather than allowing Democrats unobstructed control of redistricting in the General Assembly and doing nothing to overhaul redistricting. Echoing the silver lining that several commissioners pointed to last week, White said she hoped the court would take all of the public comment and proposals, and use them to create fair maps.
“I still think that everyone in Virginia agreed what the problem was, and the problem was one party got to draw maps in secret, with no transparency, no oversight, no consideration for the other party or for voters,” White said, “and I think this is a success in that it has moved away from that. The real failure would have been doing it the old way.”
Colby Itkowitz contributed to this report.
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