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Va. Senate Democrats ask state Supreme Court to disqualify Republicans’ nominated map drawers

Sen. Richard L. Saslaw (D-Fairfax) in Falls Church in 2019. (Bill O'Leary/The Washington Post)

The Virginia Senate Democratic Caucus on Monday asked the state Supreme Court to disqualify all three nominees tapped by Republican leadership to help it draw the state’s new congressional and legislative maps, calling them “political operatives” with conflicts of interest.

The state Supreme Court is redrawing the maps after the bipartisan Virginia Redistricting Commission, approved by Virginia voters in a constitutional amendment last year, did not reach agreement on new congressional and General Assembly districts. The commission — pitched by advocates as a way to end partisan gerrymandering — gave up last month on drawing any state legislative maps because of partisan gridlock, and it officially failed on Monday to deliver a congressional map for the same reason.

Virginia’s redistricting commission’s failure to transcend partisanship has lessons for other states, critics say

Now, to assist the Supreme Court in drawing the maps, Democratic and Republican leadership in the General Assembly can each offer nominees for the court to hire as special masters. The court will ultimately select two, one nominated by each party.

Democrats nominated three political science professors who have backgrounds serving as special masters for federal and state courts in redistricting cases. But they argued that the Republican nominees, who are experienced in redistricting, also each have long track records of working to further Republican interests.

Senate Majority Leader Richard L. Saslaw (D-Fairfax) wrote in a letter to the high court that none of the Republican choices is “capable of serving as a disinterested special master to assist this Court in proceedings that should, by law, be nonpartisan.”

“All three of the Republican leaders’ nominees are partisan political operatives who have personal and financial interests in creating maps that will unduly favor the Republican party, in violation of Virginia law,” Saslaw wrote on behalf of the Democratic Caucus.

Among the Republican nominees is Adam Kincaid, the executive director of the National Republican Redistricting Trust (NRRT) — a group self-described as “the GOP’s hub for coordinating a national redistricting strategy.” He previously worked as the redistricting coordinator for the National Republican Congressional Committee, the GOP’s primary House campaign arm.

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Kincaid said in a statement that, if he is selected by the court, “I will follow their instructions faithfully and work with my Democrat-appointed counterpart toward a map that represents all Virginians.” The NRRT emphasized that it had no part in the nomination process.

The second is Thomas Bryan, a statistician owner of a consulting firm specializing in redistricting and demographics analytics. Bryan was also paid a $20,000 consulting fee by the Virginia Senate Republican Caucus in September, according to a campaign finance report from the caucus cited in the letter. Bryan could not be immediately reached for comment Monday.

And the third, Adam Foltz, has been working for the Texas House Redistricting Committee and reporting to the Republican committee chairman, state Rep. Todd Hunter (Corpus Christi), according to employment records reported in September by the Texas Tribune.

Foltz, a former aide to Republican lawmakers in the Wisconsin Senate, also was heavily involved in drafting Wisconsin’s 2011 redistricting maps that a federal panel ruled in 2016 constituted an illegal gerrymander favoring Republicans. The U.S. Supreme Court rejected the challenge, however, saying the plaintiffs lacked standing, and later ruled that federal courts aren’t the proper avenue for partisan gerrymandering claims.

A panel of federal judges had also ruled in 2012 that a portion of the Wisconsin legislative map illegally “cracked” the Latino population in Milwaukee districts. In that case, the court separately said it found Foltz’s and his colleagues’ testimony that they were not influenced by partisan factors in drawing the maps “almost laughable”; the court noted that Foltz met with all Republican legislators and zero Democrats to go over the legislative map — information Saslaw cited in his letter to the Virginia Supreme Court. Foltz declined to comment Monday.

Jeff Ryer, press secretary for the Virginia Senate Republican Caucus, did not respond directly to questions about Democrats’ allegations of disqualifying partisanship or conflict of interest, including why the $20,000 payment to Bryan was not disclosed as part of his nomination. Instead, he argued that Democrats’ three nominees were “all extreme-left academics with well-demonstrated records of considering one and only one criteria when it comes to drawing district lines: What will benefit Democrats most.”

Ryer also referred to previous comments he made in the Richmond Times-Dispatch, in which he noted that all the Democratic nominees are college professors. “Can you name another profession in this country that has a higher level of support for the Democratic Party?” he said.

The Democratic nominees include Bernard Grofman, a political science professor at the University of California at Irvine. Grofman also served as a special master to a federal court in 2019 to redraw Virginia House districts, intended to repair racial gerrymandering in the southeast part of the state. According to an analysis from the Virginia Public Access Project, that map did favor Democrats in some key ways, but it also made a number of districts more favorable to Republicans — including several that Republicans just flipped to end Democratic control of the House, according to unofficial returns.

In a 131-page report to the court, Grofman noted that his map proposals were “drawn in a fashion that is blind with respect to partisan outcomes, with partisan data and election outcome data not examined except where needed to avoid minority vote dilution.”

Democrats also nominated Bruce E. Cain, a political science professor at Stanford University, who previously served as a court-appointed special master during Arizona redistricting in 2002. He also served as a redistricting consultant to the Maryland attorney general in 2011 — amid numerous legal complaints of gerrymandering by the Democratic-led legislature — and in the 1980s served as a redistricting consultant for the Justice Department under Republican President George H.W. Bush’s administration, among other positions.

The third Democratic nominee, Nathaniel Persily, a professor at Stanford School of Law specializing in election law and redistricting, most recently was brought on to advise the independent redistricting advisory commission of Maryland Gov. Larry Hogan (R). Persily has also been tapped by courts to redraw legislative or congressional districts in Georgia, New York, Connecticut and North Carolina, among others.

In his letter to the court on Monday, Saslaw said the Democrats’ nominations “represent a good faith effort on the part of the Democratic caucuses to ensure that this Court’s deliberations over the new maps are aided by leading national experts free of partisan advocacy or influence.”

Sen. Scott Surovell (D-Fairfax) said he worried that, if the Republican nominees were not disqualified, the precedent could cause trouble down the road. If a similar redistricting process takes place in 2030 or 2040, “everyone is going to nominate the executive director of their caucus,” he said.

Saslaw echoed that sentiment in an interview Monday, arguing that the nominees’ résumés showed a clear conflict of interest. Saslaw, who has owned gas stations around the D.C. area, said the GOP’s nominations are “like if I went into court and said I don’t have a conflict in the gasoline industry. … How can you say there are no conflicts of interest?”

The maps will have huge implications for the political future of Virginia, at least for the next 10 years, at a time when Republicans are seeking to undo the gains Democrats made during the Trump era. The maps were supposed to be in place in time for November’s general election, but a delay in census data set back the process.

A lawsuit filed in Richmond by former Democratic Party chairman Paul Goldman, however, argues that the delay meant voters elected delegates this month under illegal maps, and that House incumbents should have to run for their seats next November under the redrawn maps. The case remains pending in federal court.